THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

Essex  County  Bar  Association 


THE   NEW  JERSEY 

PRACTICE  ACT  (1912) 
AND  RULES 

ANNOTATED 

WITH  NEW  FORMS 
ADAPTED  TO  THIS  PROCEDURE 


BY 

CHARLES   H.    HARTSHORNE 

111 

OF  THE  NEW  JEKSKY  BAR. 


NEWARK,  N.  J. 
SONEY  &  SAGE 


1912 


r 


Copyriarht,  1912, 
By  CHARLES  H.  HARTSHORNE 


Ill 


PREFACE. 


It  is  not  intended  to  offer  here  a  general  treatise  upon  prac- 
tice or  pleading,  but  only  such  explanatory  notes  as  may  aid 
the  practitioner  in  adapting  the  new  methods  to  the  old :  for 
it  should  not  be  forgotten  that  the  new  system,  radical  as  are 
the  changes  made  by  it,  has  still  the  common  law  procedure 
for  its  basis.  Neither  is  it  intended  to  offer  a  complete  set  of 
forms,  but  enough  only  to  illustrate  adequately  the  new  meth- 
ods of  pleading  and  the  more  simple  and  flexible  forms  of 
judgment  that  will  be  used  in  the  new  practice. 

Most  of  the  forms  of  pleadings  are  taken  from  the  Con- 
necticut Practice  Book,  but  these  are  more  or  less  modified ; 
a  few  are  from  Bullen  &  Leake's  English  Forms  under  the 
Common  Law  Procedure  Acts,  modified  to  conform  to  our 
new  rules  of  pleading;  and  many  are  entirely  new. 

The  annotations  to  the  Act  and  Rules  cannot  usefully  be 
made  very  full  till  a  considerable  number  of  judicial  interpre- 
tations of  those  regulations  shall  have  been  made.  A  few  Eng- 
lish and  Connecticut  cases  are  referred  to  in  the  notes,  but  not 
many  of  the  provisions  of  thev  rules  in  those  jurisdictions  are 
identical  in  language  with  our  own,  and  most  of  their  judicial 
decisions  interpreting  them  will  be  found  to  be  inapplicable 
here. 

The  English  Judicature  Acts  and  Rules,  with  copious 
annotations,  may  be  found  in  The  Annual  Practice,  by  Snow, 
Burney  &  Stringer,  or  in  The  Yearly  Supreme  Court  Practice, 
by  Mackenzie  &  Chitty.  Both  are  published  yearly  in  London. 
The  latter  is  in  the  state  law  library  at  Trenton.  An  excellent 
treatise  on  the  new  English  procedure  is  Odgers'  Pleading  and 
Practice  (London,  1903). 

The  Connecticut  Practice  Act,  without  the  rules,  is  in  the 
volume  of  pamphlet  laws  of  that  state  for  1879  at  page  432. 
The  rules  may  be  found  in  58  Conn.  561.  The  act  and  the 
rules,  with  some  annotations,  were  first  published  together  in 
Beer's  Connecticut  Practice.  This  is  now  out  of  print.  The 
only  other  publication  of  them  is  The  Connecticut  Practice 


JV 


PREFACE. 


Book  (1908),  but  in  that  book  the  sections  of  the  act  of  1879 
are  interspersed  among  other  provisions  relating  to  procedure. 
There  is,  however,  a  table  in  the  book  by  which  the  sections 
of  the  Practice  Act  may  be  found  under  their  old  numbers. 
The  references  to  the  Connecticut  Act,  made  in  this  volume, 
are  to  the  original  section  numbers ;  the  references  to  the 
Connecticut  rules  are  to  the  numbers  in  The  Practice  Book 
(1908). 

The  New  Jersey  Practice  Act  (1912)  and  Rules  were  pre- 
pared by  a  committee  of  the  State  Bar  Association  appointed 
by  its  president,  William  M.  Johnson,  under  a  resolution  of 
the  Association  adopted  at  its  annual  meeting  in  June,  1911 
(Year  Book  (1911-12),  p.  28). 

The  committee  consisted  of  Charles  H.  Hartshorne  (chairman)  ; 
Supreme  Court  justices,  Francis  J.  Swayze  and  James  J.  Bergen ;  vice- 
chancellors,  Edwin  R.  Walker  (since  appointed  chancellor)  and  James 
E.  Howell ;  ex-justices  of  the  Supreme  Court,  Bennet  Van  Syckel,  John 
Franklin  Fort  and  Gilbert  Collins;  ex-judges  of  the  Common  Pleas, 
Alfred  F.  Skinner  and  Joseph  H.  Gaskill,  and  also  Senator  George  S. 
Silzer  and  Messrs.  William  M.  Clevenger  and  Frank  H.  Sommer.  The 
drafts  of  the  Practice  Act,  Rules,  and  other  measures  reported  by  the 
committee  were  made  by  a  sub-committee  consisting  of  the  chairman 
and  Messrs.  Skinner  and  Clevenger,  who  were  assisted  at  several  of 
their  meetings  by  ex-justice  Van  Syckel.  The  drafts  prepared  by  the 
sub-committee  were  changed  in  minor  details  only  by  the  full  committee. 

The  committee  reported  four  bills  to  the  Association  at  a 
special  meeting  held  in  January,  1912,  namely — 

1.  The  Practice  Act  (1912)  with  Rules  and  Forms; 

2.  The  Transfer  of  Causes  Act; 

3.  An  Act  providing  that  law  courts  may  determine  equi- 
table questions  incidentally  involved   in  law  cases,  and  that 
the  Court  of  Chancery  may  determine  legal  questions  inci- 
dentally involved  in  equity  cases ; 

4.  A  Married  Women's  Act. 

All  these  bills  were  approved  by  the  Association,  except  the 
third,  which  was  disapproved,  partly  because  it  was  doubted 
whether  the  constitution  permitted  the  legislature  to  confer 
the  jurisdiction  proposed  by  that  bill,  but  more,  I  think,  be- 
cause of  the  traditional  prejudice  of  the  lawyers  of  this  state 
against  enlarging  the  equity  powers  now  exercised  by  our 
law  courts.  It  is  not  to  the  credit  of  our  bar  that  the  satisfac- 


PREFACE.  v 

tory  experience  of  the  English  courts  in  administering  law  and 
equity  by  separate  tribunals  having  a  common  jurisdiction,  is 
either  unknown  to,  or  ignored  by,  a  majority  of  its  members. 

The  Practice  Act  and  Rules  were  adopted  by  the  legislature 
with  a  few  unimportant  amendments  suggested  by  the  com- 
mittee. The  only  change  made  without  the  committee's  ap- 
proval was  the  omission  of  a  provision  that  a  jury  trial  be 
deemed  to  be  waived  unless  expressly  demanded. 

The  Transfer  of  Causes  Act  passed  in  the  form  reported  by 
the  committee,  with  one  or  two  immaterial,  verbal  changes. 

Only  one  section  of  the  Married  Women's  Act,  as  prepared 
by  the  committee,  became  law ;  namely,  that  permitting  a  wife 
to  sue  or  be  sued  in  any  case  without  joining  her  husband 
(Infra,  p.  73).  As  reported  by  the  committee,  it  contained 
two  other  sections,  one  providing  that  contracts  between  hus- 
band and  wife  should  be  enforceable  in  the  law  courts.  This 
was  struck  out  by  the  legislature.  The  other,  providing  that 
in  an  action  at  law,  between  husband  and  wife,  any  equitable 
defense  might  be  pleaded.  This  was  struck  out  by  the  Asso- 
ciation. 

C.  H.  H. 

November,  1912. 

LIST   OF  WORKS  REFERRED  TO 
IN  THIS   BOOK. 


Elements  of  Jurisprudence,  Thomas  E.  Holland  (New  York,  1896). 
Courts   and   Procedure   in   England   and   New  Jersey,   Charles   H. 

Hartsliorne    (Newark,   N.  J.,   1905). 

Code  Remedies,  John  N.  Pomeroy,  Jr.  (Boston,  1894). 
Code  Pleadings,  Philemon  Bliss  (St.  Paul,  1894). 
Civil  Procedure,  Alexander  Martin   (Boston,   1899). 
Pleading  and  Practice  under  the  Judicature  Acts,  W.   B.   Odgers 

(London,  1003). 
Stephen  on  Pleadings. 
Chitty  on  Pleadings. 
The  Annual  Practice  (London,  1901). 
The  Yearly  Supreme  Court  Practice  (London.  1912). 
The  Connecticut  Practice  Act,  with  Rules  and  Forms,  George   E. 

Beers   (Hartford,    1901). 
The  Connecticut  Practice  Book  (Hartford,  1908). 


Vll 


TABLE   OF1   CONTENTS. 


PART  I.        INTRODUCTION.  PAGE 
History  of  the  movement  resulting 
in   the    Practice    Act    (1912).     The 
principles  of  the  Act  and  Rules.    Im- 
portant changes  made  by  them 1 

PART  II.      THE  PRACTICE  ACT  (1912),  ANNO- 
TATED             13 

PART  III.     SCHEDULE     A,     RULES     UNDER 

THAT  ACT,  ANNOTATED 27 

PART  IV.     NOTE  ON  PLEADING, 

I.     Common  Law  Rules  of  Pleading 

which  are  still  in  force 56 

II.     How  to  Answer 62 

III.     Election  of  Actions 65 

PART  V.      SEVERAL       ACTS       RESPECTING 
PRACTICE. 

Transfer  of  Causes  Act  (1912) 68 

Amendment  to  Ejectment  Act 69 

Amendment  to  Practice  Act  (1903)  69 

Amendment  to  Mechanics'  Lien  Act  71 

Married  Women's  Act    (1912) 73 


viii  TABLE  OF  CONTENTS. 

PAGE 

PART  VI.  FORMS,  INCLUDING  THE  FORMS 
IN  SCHEDULE  B  OF  THE  PRAC- 
TICE ACT. 

1.  List  of  Forms  in  Schedule  B,  with 
corresponding  numbers  of  the  same 
Forms  in  this  book 74 

2.  List  of  titles  of   Forms   in  this 

book 76 

3.  Forms : 

Writs 85 

Commencement  and  conclusion  of 

complaints 87 

Complaints  founded  on  contracts . .   91-137 

Complaints  founded  on  torts 138-166 

Answers — Commencement  &  Con- 
clusion            167 

Answers  to  complaints  on  contracts!69-189 
Answers  to  complaints  on  torts.  .189-194 

Counter-claims  and  Set-off   196 

Reply    198 

Rejoinder   199 

Postea    200 

Rules  for  Judgments 200 

Judgments    203 

Other  Forms  .  213 


NEW    JERSEY 

PRACTICE  ACT  (1912) 


PART  I. 
INTRODUCTION* 


The  history  of  the  movement — The  principles  of 

the  Act  and  Rules — Important  changes  made  by 

them. 

The  great  movement  which,  among  a  vast  number  of 
other  changes  in  legal  procedure,  brought  the  Practice  Act 
(1912)  covers  a  century.  The  agitation  in  England  for 
simplified  procedure,  begun  with  Jeremy  Bentham's  writ- 
ings in  the  early  part  of  the  Nineteenth  century,  brought  the 
Rules  of  Hilary  Term,  1834,  the  Common  Law  Procedure 
Acts  of  1852  and  1854,  the  Judicature  Act  of  1873,  and 
the  English  Rules  of  Court.  Following  that,  came  the  Con- 
necticut Practice  Act  of  1879,  which  adopted,  in  large 
measure,  the  principles  of  the  English  rules.  Our  new 
Practice  Act  adopts  many,  but  not  all,  of  the  principles  and 
provisions  of  the  Connecticut  and  English  procedure.  It 
also  includes  some  provisions  not  in  either  of  those. 

Through  all  of  these  measures  runs  a  common  purpose, 
namely,  the  purpose  to  free  civil  procedure  from  certain 
over-rigid  common-law  forms.  Each  of  them  lessens  the 
number  of  forms;  each  relaxes  some  hard  and  fast  rules; 
each  enlarges  the  power  of  judicial  control  over  procedure. 
The  whole  movement  has  been  a  progress  away  from  the 

*  This  Introduction  consists  for  the  most  part,  of  a  paper 
(somewhat  revised)  read  by  the  author  before  the  New  Jersey  State 
Bar  Association,  at  its  annual  meeting  in  June,  1912. 


Introduction  PRINCIPLES.  2 

complex,  inflexible  procedure  of  the  common  law,  toward 
a  simple  and  flexible  procedure,  having  the  common  law  sys- 
tem as  its  basis,  and  rules  of  court  to  prescribe  its  details. 

The  New  York  (Field)  code  of  civil  procedure,  enacted 
in  1848,  which,  in  modified  forms,  has  since  spread  into 
about  one-half  of  the  states  of  the  Union,  was  also  an  out- 
growth of  this  movement;  but  its  achievement  in  simplify- 
ing procedure  has  not  been  altogether  satisfactory.  The 
chief,  but  by  no  means  the  only,  distinction  between  the  sys- 
tem of  the  codes  and  the  system  adopted  in  our  State  lies 
in  the  feature  of  judicial  control  over  procedure.  The  New 
Jersey  system  regulates  details  of  procedure  by  Rules  of 
Court  and  is  flexible;  the  code  system  regulates  them  by 
statute,  and  is  inflexible. 

One  may  find  in  the  new  Practice  Act  three  principles, 
namely,  judicial  control  over  procedure,  minimum  clelay 
upon  points  of  procedure,  and  settlement  of  the  whole 
controversy  in  one  suit  so  far  as  justly  practicable. 

i.  Judicial  control  over  procedure  is  the  most  conspicu- 
ous feature  in  the  system,  as  it  is  also  in  the  English  system 
from  which  it  is  derived.  Most  details  of  the  new  pro- 
cedure are  regulated  by  rules  which  may  be  suspended  by 
the  court,  in  its  discretion,  at  any  time  and  in  any  particu- 
lar case.  Not  only  so,  but  the  Supreme  court  may,  by  rules, 
supersede  any  and  all  statutory  and  traditional  regulations 
of  procedure  at  law  now  existing,  excepting  only  those  of 
the  new  Practice  Act  and  those  guaranteed  by  constitutional 
provisions.  A  consequence  is  to  convert,  in  large  measure, 
the  field  of  adjective  law  into  a  field  of  judicial,  discretionary 
control. 

Upon  what  principle  can  we  justify  this  substitution  of 
discretion,  even  though  it  be  judicial,  for  law,  even  though 
it  be  adjective  law?  It  is  certain  that  the  process  has  been 
going  on  among  English-speaking  peoples  for  many  years. 
The  law  courts  now  have  a  much  wider  latitude  of  discre- 
tionary control  over  their  own  procedure  than  they  had  a 
century  ago.  The  most  conspicuous  instance,  perhaps,  is 
the  power  of  amendment.  The  steps  in  the  process  are  most 
easily  traced  in  the  history  of  English  law  reform  since  the 


3  PRINCIPLES.  Introduction 

first  quarter  of  the  Ninteenth  century.  During  the  agita- 
tion upon  that  subject  the  law  courts  doubted  their  power  to 
change  the  traditional  procedure,  and  hence  the  statutes  of 
1832  and  1833  ("An  Act  for  Uniformity  of  Process  in 
Personal  Actions,"  2  W.  IV  C.  39;  and  "An  Act  for  the 
Further  Amendment  of  the  Law  and  the  Better  Advance- 
ment of  Justice,"  3  &  4  W.  IV  C.  42),  under  which  the 
Hilary  Rules  were  made  in  1834.  These  were  followed, 
twenty  years  later,  by  the  Common  Law  Procedure  Acts 
of  1852  and  1854  (15  &  16  Vic.  C.  76;  and  17  &  18  Vic.  C. 
125),  from  which  our  own  Practice  Act  of  1855  was  copied, 
so  far  as  it  went,  though  a  number  of  their  provisions 
awaited  the  coming  of  the  Practice  Act  (1912)  before  the 
bar  was  ready  to  accept  them.  These  English  statutes  very 
much  enlarged  the  power  of  judicial,  discretionary  control 
over  procedure.  In  particular,  the  power  of  amendment 
was  put  in  the  form  in  which  it  is  now  in  section  126  of 
our  old  Practice  Act,  and  the  power  to  regulate  procedure 
by  rules  was  much  enlarged.  Finally,  in  the  Judicature  Acts 
of  1873  and  subsequent  years,  the  entire  subject  of  pro- 
cedure, as  distinguished  from  the  organization  of  the  sys- 
tem of  courts  and  their  jurisdiction,  was  left  to  the  courts 
to  be  regulated  by  rules.  This  system  of  procedure  has  been 
since  adopted  in  practically  all  of  the  English  self-govern- 
ing colonies,  and  seems  to  give  satisfaction  to  the  English 
people  after  a  trial  of  nearly  forty  years. 

Until  about  a  century  ago,  no  clear  distinction  appears  to 
have  been  conceived  between  substantive  and  adjective  law. 
Both  were  law,  and  one  law,  to  Blackstone  and  his  predeces- 
sors. But  since  Bentham's  writings  the  distinction  has  re- 
ceived general  acceptance,  and  all  lawyers,  I  suppose,  now 
agree  to  this  statement  by  Prof.  Holland :  "We  have  a  law 
of  Persons :  a  Substantive  law  which  sets  forth  and  ex- 
plains the  rights  of  those  persons;  and  an  Adjective  law. 
which  describes  the  procedure  by  which  redress  is  to  be  ob- 
tained when  those  rights  are  violated."  And  again :  "So 
far  as  it  defines,  thereby  creating,  it  is  Substantive  law.  So 
far  as  it  provides  a  method  of  aiding  and  protecting,  it  is 
Adjective  law,  or  Procedure."  (Elements  of  Jiirispru- 


Introduction  PRINCIPLES.  4 

dence,  pp.  78,  348).  In  short,  adjective  law  is  the  law  of 
procedure,  and  adjective  rights  are  remedial  rights. 

I  suppose  that  the  warrant  for  committing  the  law  of 
procedure  to  the  discretionary  control  of  the  courts  is  to  be 
found  in  experience,  and  that  experience  seems  to  have  been 
this,  namely,  that  the  methods  by  which  substantive  rights 
may  be  aided  and  protected  in  judicial  procedure  can  be 
better  worked  out  and  applied  by  those  trained  and  disin- 
terested experts  whose  business  it  is  to  aid  and  protect  them 
now,  rather  than  by  the  legislatures  of  the  present  day  or 
by  the  lawyers  and  judges  who  performed  that  function 
several  centuries  ago.  For  adjective  laws  and  adjective  rights 
are,  as  their  names  imply,  incidental  only  to  substantive 
rights,  and,  saving  a  few  fundamental  principles  of  proce- 
dure of  which  I  shall  speak  next,  they  are  merely  subordi- 
nate rules  of  convenience  and  of  orderly  procedure  for  safe- 
guarding those  rights  given  by  substantive  law. 

What  are  the  limits  of  this  judicial  discretion  ?  The  limits 
are  found,  for  us  at  least,  in  constitutional  limitations.  Be- 
sides certain  specific,  remedial  rights  given  by  the  State  con- 
stitution, such  as  that  to  the  trial  by  jury,  the  "Due  Process" 
clause  of  the  Federal  constitution  has  been  so  interpreted 
by  the  Supreme  Court  of  the  United  States,  as  to  furnish,  I 
venture  to  suggest,  a  complete  system  of  fundamental  prin- 
ciples of  procedure,  to  and  including  final  judgment. 

I  mention  a  few  of  the  many  decisions  of  that  Court 
which  place  the  following  principles  of  procedure  under  the 
protection  of  that  clause  of  the  constitution : 

(1)  The  court  must  have  jurisdiction  of  the  subject 
matter.     Scott  v.  McNeill,  154  U.  S.  46. 

(2)  The  parties  must  have  reasonable,  legal  notice  with 
reasonable  opportunity  to  be  heard.     Pennoyer  v.  Neff,  95 
U.  S.  714;  Roller  v.  Holly,  176  U.  S.  398;  Windsor  v.  Mc- 
Veigh, 93  U.  S.  274. 

(3)  The  judgment  must  be  confined  to  the  issues  pre- 
sented by  the  parties.    Reynolds  v.  Stockton,  140  U.  S.  254. 

It  seems  to  me  that  these  three  principles  summarize  the 
whole  body  of  the  law  of  procedure  to,  and  including,  judg- 


5  PRINCIPLES.  Introduction 

ment;  for  if,  with  due  observance  of  my  other  and  specific 
constitutional  rights,  my  case  has  been  heard  by  a  court  of 
competent  jurisdiction,  after  due,  legal  notice  and  full  op- 
portunity to  be  heard — which  includes  all  the  methods  to 
which  I  am  entitled  of  obtaining  and  presenting  the  evidence 
— and  if  the  judgment,  after  that  hearing,  be  pronounced 
upon  the  issues  submitted  to  the  court,  it  seems  to  me  that  I 
shall  then  have  had  all  that  the  body  of  the  law  of  procedure 
is  designed  to  give. 

The  remedial,  or  adjective  rights  to  which  these  principles 
give  rise,  being  constitutional  rights,  are  not  subject  to  dis- 
cretionary control.  They  are  protected  by  the  courts,  includ- 
ing, in  the  last  resort,  the  Supreme  court  of  the  nation. 
Under  that  protection  may  not  the  subordinate  rules  of  pro- 
cedure be  safely  left  to  judicial  discretion?  There  is  no 
more  danger  of  an  abuse  of  that  discretion  than  of  the  dis- 
cretion now  exercised  by  the  courts  in  striking  out  a  defense 
as  sham,  or  in  refusing  an  amendment  or  a  prerogative  writ. 

Of  course,  the  legislature  should,  and  does,  retain  the 
power  to  resume  control  of  procedure,  if  the  courts  fail  to 
perform  their  duty  in  regulating  it. 

A  consequence  of  this  judicial  control  is  a  very  much 
greater  degrees  of  flexibility.  In  Mr.  Learning's  delightful 
and  graphic  description  of  the  English  courts  at  work  ("A 
Philadelphia  Lawyer  in  the  Courts  of  London"}  he  speaks 
with  commendation  of  this  feature  of  flexibility  in  English 
procedure. 

2.  The  principle  of  minimum  delay  upon  points  of  pro- 
cedure is  sought  to  be  applied  by  several  regulations.  De- 
murrers and  dilatory  pleas  are  abolished  and  a  summary 
disposition  on  motion  is  substituted  for  these  as  well  as  for 
all  other  objections  on  points  of  pleading  and  practice.  No 
appeals  are  allowed  until  after  final  judgment,  except  from 
a  commissioner  to  a  judge  of  the  court  of  first  instance;  and 
reversals  on  appeal  are  forbidden  "unless,  after  examination 
of  the  whole  case,  it  shall  appear  that  the  error  injuriously 
affected  the  substantial  rights  of  a  party."  The  design  of 
these  provisions  is  that  every  point  of  procedure  be  deter- 
mined summarily,  on  motion;  that  the  case  then  proceed 


Introduction  PRINCIPLES.  6 

upon  the  merits  to  final  judgment;  and  that  if,  upon  the 
whole  case,  justice  has  been  done,  the  judgment  shall  stand 
though  the  decision  upon  the  point  of  procedure  be  wrong. 

It  seems  as  if  this  limitation  upon  reversals,  along  with 
the  abolition  of  exceptions  and  writs  of  error,  goes  far  to- 
ward putting  appeals  upon  a  similar  footing  with  applica- 
tions for  new  trials  on  rules  to  show  cause,  provided,  of 
course,  that  the  error  is  one  of  law.  The  appeal,  like  such 
an  application,  is  addressed  to  the  equitable  powers  of  the 
-court.  An  error  which  might,  by  possibility,  have  influ- 
enced the  -jury's  verdict,  must  heretofore  have  caused  a  re- 
versal on  writ  of  error,  even  when,  in  the  same  circumstances, 
the  court  would  have  refused  a  new  trial  on  a  rule  to  show 
cause,  justice  appearing  to  have  been  done  by  the  verdict. 
The  design  of  the  new  provision  appears  to  be  to  give  to 
the  court  the  same  power  on  appeal  which  it  now  exercises 
on  rule  to  show  cause  for  error  upon  a  point  of  law. 

\Yhat  are  the  "substantial  rights,"  injury  to  which  will 
suffice  for  reversal?  The  provision  is  taken  in  substance 
from  a  bill  prepared  by  a  committee  of  the  American  Bar 
Association  to  regulate  procedure  in  the  Federal  Courts. 
The  report  of  the  committee  and  the  bill  are  in  the  Report 
of  the  Association  for  the  year  1910,  at  pages  614,  620  and 
646.  A  discussion  of  the  committee's  report  may  be  found 
in  the  Report  of  1909  at  pages  71,  81. 

It  is  of  course  impossible  to  foretell  just  what  judicial  in- 
terpretation will  be  placed  upon  the  words  "substantial 
rights,"  but  I  venture  to  suggest  that  a  remedial  right  aris- 
ing from  a  subordinate  regulation  of  procedure  is  not  a 
"substantial  right"  within  the  meaning  of  the  statute,  un- 
less it  is  protected  by  the  constitution,  or  is  of  such  nature 
that  its  impairment  has  caused  a  real  and  substantial  in- 
justice. For  illustration :  an  order  erroneously  changing 
the  venue  in  a  local  action  infringes  a  remedial  right  only; 
and  if  the  court  had  jurisdiction,  and  the  trial  was  full  and 
fair,  and  no  actual  disadvantage  had  resulted  from  that  er- 
ror, I  should  suppose  that  no  "substantial  right"  had  been 
wronged,  although  such  an  error  would  be  ground  of  re- 
versal at  common  law. 


7  IMPORTANT  CHANGES.  Introduction 

3.  As  for  the  settlement  of  the  whole  controversy  in 
one  suit  so  far  as  justly  practicable:  In  the  English  pro- 
cedure, this  principle  is  applied  to  cases  involving  both  legal 
and  equitable  rights  and  remedies.  Here  the  principle  is 
confined  to  cases  of  which  the  law  courts  have  cognizance. 
It  is  applied  in  the  enlarged  power  to  join  parties  and  causes 
of  action,  and  to  the  wide  latitude  allowed  in  making  counter- 
claims. All  of  this,  however,  is  subject  to  the  court's  con- 
trol. 

A  number  of  changes  are  made  in  the  old  procedure.  The 
most  important  are  in  the  following  subjects : 

(1)  Forms  of  actions,  (2)  Parties,  (3)  Joinder  of  causes 
qf  action,  (4)  Counter-claims,  (5)  Pleadings,  (6)  Appeals. 

(j)  In  place  of  the  several  forms  of  common  law  ac- 
tions previously  existing,  the  new  act  substitutes  a  single 
form.  The  principle  of  the  single  form  of  action  is  a  salient 
feature  in  all  the  reformed  procedures.  In  England  and  in 
the  code  states  it  applies  to  both  legal  and  equitable  actions. 

With  the  new  system  of  pleading  the  single  form  of  ac- 
tion is  a  natural,  perhaps  a  necessary,  consequence.  For 
all  that  distinguishes  the  form  of  action  is  the  form  (i.  e. 
certain  phrasing) ,  of  the  pleadings,  the  latitude  of  evidence 
allowed  under  each  different  form,  and  the  form,  or  phras- 
ing, of  the  verdict  and  judgment.  If  the  pleadings  in  all 
cases  are  to  state,  in  simple  narrative,  the  facts  constitut- 
ing the  cause  of  action  and  defense,  and  if  the  parties  are 
to  prove  the  facts  so  stated  and  only  those,  there  will  be 
necessarily  but  one  form  of  action,  for  there  will  be  no  dis- 
tinctions of  form  on  the  record,  and  the  evidence  will  be 
determined  by  the  facts  stated  in  the  pleadings. 

(2)  As  to  parties,  the  new  Act  and  Rules  make  import- 
ant changes.     The  common  law  conception  of  the  parties 
upon  each  side  was  that  of  a  unit.     No  matter  how  numer- 
ous the  plaintiffs,  they  were  regarded  as  a  unit.     In  actions 
on  contract  all  or  none  must  recover.     The  same  concep- 
tion applied  to  defendants,  but  with  many  exceptions.    And 
this  notion  influenced  all  the  subsequent  steps  in  the  action 
including  the  judgment.     But  it  was  only  in  ordinary  com- 


Introduction  IMPORTANT  CHANGES.  8 

mon  law  actions  that  this  conception  arose.  In  all  judi- 
cial proceedings  developed  from  the  civil  law;  in  equity,  in 
admiralty,  and  in  ecclesiastical  cases,  it  was  never  recog- 
nized. In  those  tribunals,  the  parties  were  those  whose 
rights  were  to  be  defined  and  enforced  or  protected  in  the 
controversy,  subject  to  subordinate  rules  for  the  just  and 
orderly  presentation  of  their  respective  sides  of  the  case. 
The  Field  Code  of  Procedure,  appears  to  have  been  the 
first  attempt  to  substitute,  in  ordinary  actions,  the  concep- 
tion of  the  civil  law  for  that  of  the  common  law,  in  respect 
of  parties.  This  feature  was  adopted  in  the  English  Rules 
under  the  Judicature  Act  of  1873,  and  in  the  Connecticut 
Practice  Act  in  1879.  It  is  embodied  in  our  new  act  and 
rules.  It  should  be  noted,  however,  that,  for  the  most  part, 
the  new  provisions  as  to  parties  are  permissive,  the  word 
used  is  "may,"  which  is  declared  in  the  act  not  to  be  man- 
datory. 

The  most  important  changes  in  the  subject  of  parties  are 
those  permitting  plaintiffs  to  join,  and  defendants  to  be 
joined,  in  the  alternative;  permitting  personal  representa- 
tives of  a  deceased  co-contractor  to  join  as  plaintiffs  or  be 
joined  as  defendants  with  surviving  co-contractors;  permit- 
ting parties  to  be  added  or  dropped  at  any  stage  of  the  case, 
and  prohibiting  the  defeat  of  the  action  because  of  misjoin- 
der  or  non-joinder  of  parties. 

Third  parties  may  be  brought  in,  by  defendant,  on  a  coun- 
ter-claim. I  suppose  an  instance  in  which  this  last  pro- 
vision would  apply  may  be  the  case  of  a  defendant  who 
counter-claims  upon  the  plaintiff's  note  endorsed  by  a  third 
person. 

It  is  obvious  that  with  this  latitude  in  the  range  of  par- 
ties, and  this  diversity  in  the  character  of  the  rights  that  may 
be  brought  before  the  court,  much  more  flexibility  in  the 
form  of  judgment  is  necessary  than  was  allowed  at  common 
law.  Hence  section  20  permits  the  court  to  "determine  the 
ultimate  rights  of  the  parties  on  each  side  as  between  them- 
selves," and  section  21  permits  the  judgment  to  be  "entered 
in  such  form  as  may  be  required  by  the  nature  of  the  case." 
Under  these  sections,  the  judgment  may  be  as  flexible  as  a 


9  m  IMPORTANT  CHANGES.  Introduction 

decree  in  equity,  and  the  plaintiff's  rights,  if  they  differ,  may, 
in  certain  cases,  be  settled  as  between  themselves,  as  may 
now  be  done  in  equity.  An  instance,  perhaps,  may  be  the 
case  of  disagreement  between  plaintiffs  as  to  their  respec- 
tive shares  in  the  recovery ;  or  when  they  sue  in  the  alterna- 
tive upon  an  instrument  the  construction  of  which  makes 
doubtful  which  of  them  should  bring  the  suit. 

But  all  these  innovations  in  respect  of  parties  are  under 
judicial  control.  The  court  may  limit  them  by  rules,  and 
may  order  separate  trials  in  any  particular  case. 

(3)  In  discussing  joinder  of  causes  of  action,  it  is  neces- 
sary to  keep  in  mind  the  distinction  between  that  subject 
and  joinder  of  parties.  A  good  illustration  is  the  case  of 
Ricardo  v.  News  Publishing  Company,  73  N.  J.  L.,  146, 
where  husband  and  wife  joined  in  one  action  for  a  libel 
upon  her  tenement  house  and  another  libel  upon  her,  per- 
sonally. The  two  wrongs  were  stated  in  separate  counts. 
It  was  held,  under  our  statutes,  that  the  first  cause  of  ac- 
tion was  vested  in  the  wife  alone,  and  the  second  in  hus- 
band and  wife  jointly.  For  this  misjoinder  a  demurrer  was 
sustained  to  the  whole  declaration.  It  was  also  held  that 
there  was  a  misjoinder  of  parties  upon  the  first  count,  as 
the  wife  should  have  sued  alone,  but  this  could  be  availed  of 
only  by  a  motion  to  strike  out. 

The  new  Practice  Act  allows  the  joinder  of  any  causes  of 
action,  with  a  few  express  exceptions.  This  provision  was 
in  the  Common  Law  Procedure  Act  of  1852,  and  is  in  the 
Rules  under  the  Judicature  Act.  The  Connecticut  Act  did 
not  adopt  it,  but,  instead,  borrowed  the  New  York  code  pro- 
visions respecting  joinder. 

Probably  the  greatest  innovation  in  respect  to  this  subject 
will  be  considered  that  contained  in  sections  4  and  6  per- 
mitting plaintiffs  to  sue.  and  defendants  to  be  sued,  on  separ- 
ate causes  of  action,  "if  the  causes  of  action  have  a  common 
question  of  law  or  fact  and  arose  out  of  the  same  transac- 
tion." The  English  Rules  were  amended  to  permit  this 
course,  but  as  to  plaintiffs  only,  after  the  House  of  Lords 
had  decided  that  it  was  not  allowable  under  Jhe  rules  as  at 
first  framed.  Smnrthzvaite  vs.  Hanney,  App.  Ca.  (1894), 


Introduction  IMPORTANT  CHANGES.  10 

494.  The  provision  was  not  adopted  in  Connecticut,  and 
has  not  been  extended  to  defendants  in  either  England  or 
Connecticut;  but  there  seems  to  be  no  good  reason  why  it 
should  not  apply  to  defendants  as  well  as  plaintiffs.  The 
court  has  discretionary  power  to  order  separate  trials  ( Rule 
12),  and  to  strike  out  causes  of  action  which  can  not  be  con- 
veniently tried  with  others  in  the  same  case  (Rule  14).  Sub- 
ject to  this  judicial  control,  and  when  the  controversies  have 
arisen  from  the  same  transaction,  the  test  which  determines 
the  joinder  is  the  presence  of  a  question  of  law  or  fact  com- 
mon to  both  causes  of  action;  that  is,  whether  the  law,  or 
the  evidence  of  the  facts,  will  be  the  same,  or  so  nearly  the 
same,  in  the  two  cases  as  to  admit  of  a  just  and  convenient 
trial  of  them  together.  A  similar  question  is  presented  to 
the  court  whenever  a  defendant,  indicted  jointly  with  others, 
applies  for  a  severance.  The  cases  of  Board  of  Education 
v.  Howard,  65  N.  J.  L.  74  and  Nierenberg  v.  Wood,  59 
N.  J.  L.  112,  are  illustrations  of  cases  in  wrhich  these  pro- 
visions of  the  new  act  might  prevent  much  delay,  and 
even  a  total  failure  of  justice. 

Objection  for  nonjoinder  or  misjoinder  of  parties  or  of 
causes  of  action  must  be  made  by  motion.  For  misjoinder 
of  causes  of  action  it  must  be  made  before  answer  filed,  or 
it  will  be  waived.  (Rule  15). 

(4)  Subject  to  rules,  a  counter-claim,  under  section  12, 
may  set  up  any  cause  of  action;  but  the  court  has  discre- 
tionary power  to  order  separate  trials  or  to  strike  it  out  if  it 
can  not  be  conveniently  tried  with  the  other  issues  in  the 
case.     The  English  rule,  in  language  similar  to  that  in  sec- 
tion 12,  has  been  held  to  preserve  set-off  as  a  separate  de- 
fense from  counter-claim,  and  subject  to  some  of  the  old 
limitations  upon  the  use  of  the  former  defense. 

(5)  Pleadings  are  placed  entirely  under  judicial  con- 
trol.   They  must  "be  according  to  rules  of  court,"  and  the 
court  may  suspend  or  amend  those  rules  at  will.     The  new 
system  by  no  means  abolishes  all  the  common  law  rules  of 
pleading.     Most  of  those  which  are  designed  for  precision 
and  brevity  <^f  statement,  and  which  aid  in  bringing  the 


11  IMPORTANT  CHANGES-  Introduction 

pleadings  to  issue  are,  I  take  it,  still  in  force  in  so  far  as 
they  consist  with  the  new  rules,  though  probably  they  will 
be  enforced  with  less  rigor  and,  in  the  Supreme  court,  with 
less  delay.  The  gain  in  the  new  system  lies  in  this,  that  it 
abolishes  a  number  of  useless  arbitrary  rules,  such  as  the 
rules,  that  every  traversable  fact  must  be  alleged  with  time 
and  place,  that  a  pleading  is  demurrable  which  purports  to 
answer  the  whole,  but  in  fact  answers  but  part,  of  the  oppo- 
site pleading,  and  the  like;  and  it  provides  a  summary 
method  of  settling  disputes  upon  pleadings. 

The  principle  of  the  new  system  of  pleading  is  simple 
enough.  It  is  that  each  party  shall  state  the  facts  which 
constitute  his  cause  of  action  or  defense  and  shall  prove 
nothing  that  he  does  not  so  state.  Of  course,  only  the  is- 
suable  facts  need  be  stated.  If  the  action  be  based  upon  the 
disputed  authority  of  defendant's  agent,  only  the  issuable 
fact  that  the  agent  was  duly  authorized  should  be  stated,  not 
the  probative  facts  from  which  plaintiff  inferred  the  au- 
thority, though  those  are  what  he  expects  to  prove.  If  these 
probative  facts  are  such  as  the  defendant  is  entitled  to  know 
in  advance  of  trial,  he  may  get  them  by  a  demand,  or  an 
order,  for  particulars.  But  probative  facts  should  be  stated 
when  necessary  "fairly  to  apprise  the  adverse  party  of  the 
state  of  facts  which  it  is  intended  to  prove."  (Rule  21). 

(6)  Appeals  are  substituted  for  writs  of  error  in  civil 
cases,  but  only  where  a  writ  of  error  could  previously  have 
been  used.  The  appeal  removes  the  entire  record  with  all 
incidental  proceedings;  so  there  can  no  longer  be  a  refusal 
to  review  the  case  because  an  "outlying  branch  of  the  record" 
has  not  been  brought  up,  nor  because  no  exception  was  tak- 
en, or  if  taken  was  not  signed,  or  if  taken  and  signed  did 
not  cover  the  precise  point  of  the  objection.  The  appeal 
is  "in  the  nature  of  a  rehearing,"  a  phrase  borrowed  from 
the  English  Rules,  and  well  known  in  our  practice.  I  take 
the  meaning  of  this  to  require  a  re-examination  of  the  whole 
record  of  the  case,  including  the  evidence,  so  far  as  may  be 
necessary  to  determine  the  questions  presented  on  the  appeal. 
Taken  along  with  the  provision  that  a  judgment  shall  be 
reversed  onlv  when  "after  examination  of  the  whole  case" 


Introduction  IMPORTANT  CHANGES.  12 

injury  to  a  substantial  right  appears,  it  seems  to  me  that 
the  design  of  the  act  is,  as  I  have  already  stated,  to  give  the 
court  the  same  equitable  control  over  the  final  judgment  on 
appeal,  that  it  now  has  over  the  verdict  on  an  application  for 
a  new  trial  on  the  ground  of  error  in  law. 

The  success  of  the  new  Practice  Act  and  Rules  must  de- 
pend, in  large  measure,  upon  the  way  in  which  the  courts 
interpret  their  provisions.  The  first  section  requires  a  liberal 
construction,  "to  the  end  that  legal  controversies  may  be 
speedily  and  finally  determined  according  to  the  substantive 
rights  of  the  parties."  I  emphasize  the  word  "substantive," 
because  so  much  litigation  and  delay  has  heretofore  occurred 
over  adjective  rights,  and  often  when  they  had  nothing  to 
do  with  the  merits  of  the  particular  case  or  the  maintenance 
of  a  reasonable  procedure.  The  success  of  the  English  Judi- 
cature Act  and  Rules  has  been  much  aided  by  the  enlight- 
ened, and  liberal  good  sense  with  which  the  English  judges 
have  interpreted  them.  I  have  given  some  instances  of  this 
in  my  Courts  and  Procedure  in  England  and  Neiv  Jersey 
(pp.  46,  155).  I  do  not  doubt  that  our  judges  will  perform 
their  task  in  this  respect  with  an  equal  desire  to  give  effect 
to  the  spirit  of  the  act. 

One  thing  is  clear,  namely,  that  if  there  be  any  just,  pub- 
lic discontent  with  failures  of  justice  or  unreasonable  delays 
due  to  the  system  of  procedure,  in  so  far  as  remedy  may  be 
possible  within  the  wide  limits  of  the  constitution  and  the 
new  Practice  Act,  it  wrill  not  be  the  legislature  that  will  be 
responsible.  Whether  or  not  we  shall  have  an  efficient  sys- 
tem of  civil  procedure  in  the  law  courts,  within  those  limits, 
will  rest  with  the  Justices  of  the  Supreme  court.  To  them 
is  given  the  power;  upon  them  rests  the  duty.  I  think  we 
all  believe  that  they  will  faithfully  discharge  it. 


13 


PART  II. 
PRACTICE  ACT  (1912) 


1.  Short   Title    and    Construe-  20. 
tion  21. 

2.  Definitions  22. 

3.  Single  Form  of  Action 

4.  Parties  23. 

5.  Same  Subject  24. 

6.  Same   Subject  25. 

7.  Same  Subject 

8.  Same   Subject  26. 

9.  Non-Joinder,  Mis-Joinder  27. 

10.  Saving  Clause 

11.  Joinder   of   causes   of  Action  28. 

12.  Counter-Claim 

13.  Failure  of  Consideration  29. 

14.  Default  in  Pleading 

15.  Summary  Judgment  30. 

16.  Same  Subject  31. 

17.  Preliminary  Reference  32. 

18.  Admissions  33. 

19.  Reserving  Questions  of  Law  : 
Submitting    Case    in    Alter-  34. 
native 

A  Supplement  to  an  Act  Entitled  "An  Act  to  Regu- 
late the  Practice  of  Courts  of  Law  (Revision  of 

1903)-" 

LAWS  OF  1912,  CHAPTER  231.* 

i.     SHORT  TITLE  AND  CONSTRUCTION. 

The  short  title  of  this  act  is  "The  Practice  Act  (1912)." 
It  shall  be  liberally  construed,  to  the  end  that  legal  con- 
troversies may  be  speedily  and  finally  determined  according 
to  the  substantive  rights  of  the  parties.  The  rule  that  stat- 
utes in  derogation  of  the  common  law  must  be  strictly  con- 
strued shall  not  apply  to  this  act. 


Judgment;  Execution 
Form  of  Judgment 
Judgment     without     Plead- 
ings 

Amendments 
Same  Subject 

Bills   of   Exceptions;   Writs 
of  Error;  Appeals 
Same  Subject 

Reversal   or   Xew  Trial   on. 
Merits 

Additional    Evidence    Upon 
Appeal 

Practice    in    the    Court    of 
Errors 
Costs 

Orders  by  a  Judge 
Rules  of  Court 
Actions  Pending  When  This 
Act  Takes  Effect 
Repealer 


*  The  Act  was  approved  March  28th,  1912. 
4th,  1912. 


It  took  effect  July 


Sec.  2  PRACTICE  ACT.  14 

Shall  Be  Liberally  Construed.  Brett,  M.  R.,  remarked,  re- 
specting the  interpretation  of  the  English  Judicature  Act  (1873),  that 
"The  great  object  of  the  Court  of  Appeal  has  been  to  make  litiga- 
tion as  short,  as  cheap,  and  as  safe  to  the  suitors  as  practicable;"  and 
after  referring  to  the  provisions  of  that  Act  requiring  that  the  whole 
controversy  (legal  and  equitable),  be  settled  in  one  suit,  and  that 
multiplicity  of  legal  proceedings  be  avoided,  he  added :  "Every  en- 
deavor has  been  made  to  carry  out  this  principle,  and  all  the  judges 
have  tried  to  bring  litigation  to  an  end  as  speedily  as  possible." 

McGowan  vs.  Middleton,  11  Q.  B.  (1883),  468. 

And  see,  Craft  Refrigerating  Co.  vs.  Quinnipiac,  &c.  Co.,  63 
Conn.,  561,  as  to  the  liberal  construction  placed  upon  the  Con- 
necticut Practice  Act. 

According  to  the  Substantive  Rights,  i.  e.,  as  distinguished  from 
adjective  rights.  The  reference  must  be  to  the  elementary  distinc- 
tion between  rights  arising  out  of  substantive  law  and  those  aris- 
ing from  adjective  law  or  the  law  of  procedure.  Compare  with 
"substantial  rights"  in  Sect.  27.  See  Holland's  Elements  of  Juris- 
prudence, p.  78,  348,  for  definition  of  substantive,  and  adjective,  law. 

2.  DEFINITIONS. 

The  following  terms,  for  the  purposes  of  this  act,  have 
the  following  meanings :  The  word  "may"  is  not  manda- 
tory; the  term  "Practice  Act"  refers  to  the  act  to  which 
this  is  a  supplement ;  the  "rules"  herein  mentioned  are  rules 
of  court. 

3.  SINGLE  FORM  OF  ACTION. 

There  shall  be  but  one  form  of  civil  action  in  the  courts 
of  common  law,  which  shall  be  denominated  an  "Action  at 
Law,"  but  this  shall  not  apply  to  proceedings  upon  Preroga- 
tive Writs;  provided  that,  subject  to  rules,  a  writ  of  man- 
damus may  be  awarded  in  such  an  action.  The  process  and 
pleadings  in  all  actions  shall  be  according  to  rules  of  court. 
But  One  Form  of  Civil  Action.  The  principle  of  the  single 
form  of  action  is  here  established,  but  only  in  actions  at  law.  In 
England,  in  her  self-governing  colonies  and  in  Connecticut,  as 
well  as  in  the  "code  states,"  the  principle  applies  to  actions  at  law 
and  in  equity.  For  a  summary  of  the  history  of  this  change,  see  my 
Courts  and  Procedure,  p.  77.* 

*A11  of  the  English  Rules  referred  to  in  this  book  except  Rule  2, 
Order  32  (mentioned  infra  under  sec.  18)  are  given  in  the  Appendix  to 
Courts  and  Procedure. 


15  PRACTICE  ACT.  Sec.  4 

A  Writ  of  Mandamus  May  Be  Awarded.  This  provision  will 
be  applied  chiefly,  perhaps  only,  in  suits  against  municipal  corpora- 
tions. Judgment  against  these  corporations  rnust  be  enforced  by 
mandamus  and  not  by  execution.  The  complaint  should  contain  a 
prayer  for  the  writ.  See  cases  cited  in  Note  to  Form  17. 

Process  and  Pleadings  in  All  Actions  Shall  Be  According  to> 
Rules.  This  is  believed  to  give  the  Supreme  Court  authority  to! 
remodel  the  forms  of  pleading  upon  prerogative  writs,  if  it  shall 
choose  to  do  so.  (See  note  to  Rule  17.)  The  forms  of  summons 
in  all  common  law  actions,  including  ejectment  and  actions  on 
mechanics  liens,  are  now,  as  stated  in  Forms  i  to  3. 

4.     PARTIES. 

Subject  to  rules,  all  persons  claiming  an  interest  in  the 
subject  of  the  action  and  in  obtaining  the  judgment  demand- 
ed, either  jointly,  severally  or  in  the  alternative,  may  join 
as  plaintiffs,  except  as  otherwise  herein  provided.  And  per- 
sons interested  in  separate  causes  of  action  may  join  if  the 
causes  of  action  have  a  common  question  of  law  or  fact  and 
arose  out  of  the  same  transaction  or  series  of  transactions. 

See  Rules  6-10. 

All  Persons  Claiming  An  Interest  In.  This  section  follows 
partly  Sec.  n,  of  the  Connecticut  Practice  Act,  and  partly  the 
English  Order  16,  Rule  i.  This  rule  given  in  full  in  Courts  and  Pro- 
cedure, p.  193. 

Subject  of  the  Action.  For  a  discussion  of  the  meaning  of 
this  term,  with  judicial  decisions,  see  Pom£roy's  Code  Remedies. 
Sections  475,  487,  et  seq. ;  Bliss  on  Code  Pleading,  Sec.  126 ;  37  Cyc.  343 

Or  in  the  Alternative.  The  meaning  of  this  phrase  is  illus- 
trated in  Form  89. 

If  the  Causes  of  Action  Have  a  Common  Question  of  Law 
or  Fact.  This  is  not  in  the  Connecticut  Practice  Act  or  Rules.  Itf 
is  taken,  in  substance,  from  the  English  Order  16,  Rule  I,  men- 
tioned above.  A  note  upon  the  history  of  the  provision  is  given 
in  Courts  and  Procedure,  at  page  88 ;  and  see  supra  p.  9,  as  to  the 
amendment  of  the  English  Rule. 

The  following  cases  are  illustrations  of  the  application  of  the 
English  Rule: 

The  owners  and  tenants  of  two  adjoining  houses  may  join  in 
one  action  for  damages  for  a  common  nuisance  or  other  injury 
to  their  respective  properties,  if  caused  by  the  same  acts  of  the 
same  persons.  House  Property  Co.  vs.  Horse  Nail  Co.,  29  Ch.  Div.  190. 


Sec.  5  PRACTICE  ACT.  16 

If  a  committee  or  any  other  defined  body  of  persons  be  libeled 
collectively,  as  a  body,  they  may  all  join  in  one  action.  Booth  vs. 
BriscL-e,  2  Q.  B.  D.  496. 

But  if  A  defames  B  on  one  occasion,  and  C  on  another,  B  and 
C  cannot  joint  in  one  action  against  A,  even  though  the  charges 
be  "historically"  connected;  for  each  slander  is  a  separate  "trans- 
action." Sandes  vs.  Wildsmith  (1893),  I  Q.  B.  771. 

Persons  separately  induced  to  take  debentures  on  the  faith  of 
untrue  statements  contained  in  the  same  prospectus  may  join  as 
plaintiffs.  Dnncqbier  vs.  Wood  (1899),  I  Ch.  Div.  393. 

When  a  plaintiff  claims  relief  in  his  personal  capacity,  and 
other  relief  on  behalf  of  himself  and  all  other  shareholders,  he 
cannot  join  these  causes  of  action  unless  they  show,  not  only  a 
common  question  of  law  or  fact,  but  also  that  they  arise  out  of 
the  same  transaction.  Stroud  vs.  Luivson  (1898),  2  Q.  B.  44. 

When  the  damages  were  assessed  in  a  lump  sum,  a  new  trial 
was  refused,  although  the  Court  said  that  the  damages  of  each 
plaintiff,  upon  his  separate  cause  of  action,  ought  to  have  been 
assessed  severally;  but  inasmuch  as  the  plaintiffs  were  willing  to 
divide  the  damages,  assessed  by  the  verdict,  among  themselves, 
the  Court  allowed  the  verdict  to  stand.  Booth  vs.  Briscoe,  2  Queen's 
Bench  Div.,  p.  496. 

Transactions.'  The  word  is  explained  in  Rule  13,  which  is 
taken  from  Rule  150  of  Connecticut.  There  had  been  much  dis- 
cussion over  its  meaning  in  the  code  states.  See  Pomeroy's  Code 
Pleadings,  Sec.  476,  et  seq;  23  Cyc.  411.  And  see  Craft  Refrigerat- 
ing Co.  vs.  Quinnipiac  Co.,  63  Conn.,  551,  561,  where  the  word,  as 
used  in  the  Connecticut  Act  and  Rules,  is  explained. 

Supra  p.  9,  as  to  the  distinction  between  joinder  of  causes 
of  action  and  joinder  of  parties. 

5.  SAME  SUBJECT. 

If  one  who  may  join  as  plaintiff  declines  to  do  so,  he  may 
be  made  a  defendant,  the  reason  therefor  being  stated  in 
the  complaint. 

The  Reason  Therefor  Being  Stated.  For  the  manner  of  stat- 
ing the  reason,  see  Form  108. 

6.  SAME  SUBJECT. 

Subject  to  rules,  any  person  may  be  made  a  defendant, 
who,  either  jointly,  severally  or  in  the  alternative,  is  alleged 
to  have  or  claim  an  interest  in  the  controversy,  or  in  any 
part  thereof,  adverse  to  the  plaintiff,  or  whom  it  is  necessary 
to  make  a  party  for  the  complete  determination  or  settlement 
of  any  question  involved  therein. 


17  PRACTICE  ACT.  Sec.  8 

The  plaintiff  may  join  separate  causes  of  action  against 
several  defendants  if  the  causes  of  action  have  a  common 
question  of  law  or  fact  and  arose  out  of  the  same  transac- 
tion or  series  of  transactions. 

See  also  Rules  6,  7,  8,  n.  This  section  is  taken  partly  from 
the  Connecticut  Practice  Act,  Sec.  12,  and  partly  from  the  English 
Order  16,  Rule  4,  which  is  given  at  length  in  Courts  and  Procedure, 
P.  194- 

Or  in  the  Alternative.     Illustrated  in  Form  59. 

May  Join  Separate  Causes  of  Action.  This  provision  as  to 
defendants  is  not  in  either  the  Connecticut  or  the  English  Rules. 
In  England  it  was  at  first  held,  by  construction,  that  the  English 
Rule  permitted  what  is  expressly  allowed  here;  but  that  decision 
was  reversed.  Sadler  vs.  Great  Western  R.  R.  Co.  (1896)  A.  C. 
450;  and  see  the  note  in  Courts  and  Procedure,  87;  and  supra  p.  9. 

The  provision  here  will  probably  allow  the  joining  of  separate 
causes  of  action  in  such  cases  as  Board  vs.  Hozmrd,  65  N.  J.  L.  74, 
and  Nierenberg  vs.  Wood,  59  N.  J.  L.  112. 

But  the  court  may  strike  out  causes  of  action,  which  cannot 
be  conveniently  tried  together.  Rule  14  (f). 

Rules  4  and  6  are  optional  to  the  plaintiff.  He  "may"  proceed 
under  them.  "May"  is  not  mandatory.  Sec.  2. 

As  to  the  manner  of  assessing  unliquidated  damages  on  sep- 
arate causes  of  action  against  several  defendants  whose  separate 
acts  have  contributed  to  the  same  injury,  see  Weidman  Silk  Dyeing 
Co.  vs.  Newark,  84  Atl.  273. 

7.  SAME  SUBJECT. 

An  executor,  administrator,  or  trustee,  of  an  express  trust 
(including  one  with  whom  a  contract  is  made  for  the  bene- 
fit of  another)  may  sue  or  be  sued  without  joining  the  per- 
son beneficially  interested  in  the  suit. 

8.  SAME  SUBJECT. 

The  court  may  determine  the  controversy  as  between  the 
parties  before  it,  where  it  can  do  so  without  prejudice  to  the 
rights  of  others ;  but  where  a  complete  determination  cannot 
be  had  without  the  presence  of  other  parties,  the  court  may 
direct  them  to  be  brought  in.  Where  a  person,  not  a  party, 
has  an  interest  or  title  which  the  judgment  will  affect,  the 
court,  on  his  application,  shall  direct  him  to  be  made  a  party. 


Sec.  9  PRACTICE  ACT.  18 

9.  NON-JOINDER,  MISJOINDER. 

No  action  shall  be  defeated  by  the  non-joinder  or  mis- 
joinder  of  parties.  New  parties  may  be  added  and  parties 
misjoined  may  be  dropped,  by  order  of  the  court,  at  any 
stage  of  the  cause,  as  the  ends  of  justice  may  require. 

10.  SAVING  CLAUSE. 

No  change  in  parties,  made  by  order  of  court,  shall  impair 
any  previous  attachment  of  the  estate  or  body  of  any  person 
remaining  a  defendant  in  the  action;  nor  impair  bonds  or 
recognizances  of  any  person  remaining  a  party,  either  as 
against  himself  or  his  sureties;  nor  impair  receipts  to  an 
officer  for  property  attached ;  and,  when  parties  are  changed, 
the  court  may  order  new  bonds  if  such  new  bonds  are  deemed 
necessary.  Orders  of  court  concerning  change  in  parties 
may  be  upon  terms  at  the  discretion  of  the  court. 

11.  JOINDER  OF  CAUSES  OF  ACTION. 

Subject  to  rules,  the  plaintiff  may  join  any  causes  of  ac- 
tion. 

See  Rule  14.  This  provision  is  not  in  the  Connecticut  Act. 
It,  and  Rule  14  limiting  it,  are  taken  from  English  Order  18,  Rules 
I  to  9,  given  at  length  in  Courts  and  Procedure,  197.  The  Common 
Law  procedure  Acts  permitted  the  joinder  of  "causes  of  action  of 
whatever  kind"  except  replevin  and  ejectment;  Courts  and  Procedure, 
137.  And  see  infra  p.  65,  as  to  election  of  actions. 

12.  COUNTER-CLAIM. 

Subject  to  rules,  the  defendant  may  counter-claim  or  set 
off  any  cause  of  action.  He  may,  and  when  required  by  the 
court  shall,  issue  summons  against  any  third  party  necessary 
to  be  brought  in;  but,  in  the  discretion  of  the  court,  separate 
trials  may  be  ordered,  or  if  the  counter-claim  cannot  be  con- 
veniently disposed  of  in  the  pending  action,  the  court  may 
strike  it  out. 

See  Rules  46-49. 

May  Counter-Claim  or  Set-Off  Any  Cause  of  Action.  From 
the  English  Practice,  Order  19.  Rule  3  (Courts  and  Procedure,  199, 
200),  reads,  "A  defendant  in  an  action  may  set-off,  or  set  up  by 
way  of  counter-claim,  against  the  claims  of  the  plaintiff,  any  right 
or  claim  whether  such  set-off  or  counter-claim  sounds  in  dam- 


19  PRACTICE  ACT.  Sec.  13 

ages  or  not,  and  such  set-off  or  counter-claim  shall  have  the  same 
effect  as  a  cross-action,  so  as  to  enable  the  Court  to  pronounce 
a  final  judgment  in  the  same  action,  both  on  the  original  and  on 
the  cross-claim"  *  *  * 

Under  that  provision  it  is  held  that  the  right  of  set-off  exists 
subject  to  some  of  the  former  limitations  upon  its  use,  while  the 
counter-claim  (for  matters  not  the  subject  of  a  set-off)  is  not  sub- 
ject to  those  limitations,  i  Ann.  Pr.  (1901),  287,  et  seq. ;  Yearly 
Practice  (1912),  222,  272.  But  the  Enlish  right  of  set-off  differs 
from  ours.  It  is  not  deemed  a  cross-action;  it  is  a  defense  only; 
defendant  can  recover  nothing  upon  it.  Yearly  Practice  (1912)  277. 

Some  of  the  cases  illustrating  the  English  Rule  respecting 
counter-claim  are  these: 

It  must  claim  against  plaintiff  in  the  same  capacity  as  that 
in  which  he  sues.  If  he  sues  in  his  own  right,  defendant  cannot 
counter-claim  against  him  as  Trustee  or  Executor.  Macdonald  vs. 
Carington,  4  C.  P.  D.  28;  Stumore  vs.  Campbell  (1892),  i  Q.  B.  314. 
(But  see  infra,  Rule  14  (c). 

But  upon  a  joint  claim  by  two  plaintiffs,  a  separate  counter- 
claim against  each  of  them  was  allowed.  M.  S.  &  L.  Ry.  Co.  vs. 
Brooks,  2  Ex.  D.  243. 

A  joint  claim  against  two  may  be  set  up  as  a  counter-claim 
against  a  separate  claim  by  one  of  them.  Eyre  vs.  Moreing,  W.  N. 
(1884),  58. 

In  a  suit  against  a  married  woman  in  which  her  husband  was 
"co-defendant  for  conformity,"  a  joint  claim  by  husband  and  wife 
was  allowed.  Hodson  vs.  Mochic,  8  C.  D.  569. 

Against  Any  Third  Party.  The  third  party  procedure  is  not 
likely  to  be  used  very  often.  The  provision  would,  perhaps,  apply 
in  such  a  case  as  a  counter-claim  on  a  note  made  by  plaintiff  and 
a  third  party. 

Separate  Trials  May  Be  Ordered.  For  the  general  power  to 
order  separate  trials,  see  Rule  12. 

May  Strike  It  Out.  For  the  general  power  to  strike  out  causes 
of  action,  see  Rule  14  (f). 

13.     FAILURE  OF  CONSIDERATION. 

In  an  action  upon  a  contract,  whether  under  seal  or  not, 
the  defendant  may  set  up  in  abatement  of  the  debt  or  dam- 
ages claimed,  a  defect  in,  or  partial  failure  of  the  considera- 
tion of  the  contract  sued  on. 

This  is  identical  with  the  first  clause  in  Section  105  of  the 
Practice  Act  (1903),  which  Section  is  repealed;  infra,  Sec.  34. 


Sec.  14  PRACTICE  ACT.  20 

14.  DEFAULT  IN  PLEADING. 

Judgment  of  non-suit  or  by  default  may  be  entered  against 
plaintiff  or  defendant  respectively  for  failure  to  plead  ac- 
cording to  the  rules. 

15.  SUMMARY  JUDGMENT. 

Subject  to  rules,  any  frivolous  or  sham  defense  to  the 
whole  or  to  any  part  of  the  complaint  may  be  struck  out;  or, 
if  it  appear  probable  that  the  defense  is  frivolous  or  sham, 
defendant  may  be  allowed  to  defend  on  terms.  Defendant, 
after  final  judgment,  may  appeal  from  any  order  made 
against  him  Tinder  this  section. 
See  Rules  57-60. 

1 6.  SAME  SUBJECT. 

If  the  answer  as  filed,  or  after  any  part  thereof  shall  be 
struck  out,  leaves  a  part  of  the  plaintiff's  claim  uncontested, 
judgment  interlocutory  or  final  may  be  entered  for  such 
part  as  is  not  contested  and  the  cause  may  proceed  to  trial 
as  to  the  residue. 

See  Sec.  20,  note;  and  note  to  Form  232. 

17.  PRELIMINARY  REFERENCE, 

The  court  may,  under  such  conditions  as  it  may  fix,  re- 
quire any  or  all  motions  preliminary  to  trial  to  be  heard  and 
determined  by  Supreme  Court  Commissioners  designated 
by  the  court,  and  may  fix  their  fees  which  shall  be  costs  in 
the  cause. 

See  Rules  61-65. 

1 8.  ADMISSIONS. 

Any  party  may  call  upon  any  other  party,  by  written  no- 
tice, to  admit  (but  only  for  the  purposes  of  the  cause)  the 
existence,  due  execution,  signing  or  mailing  of  any  docu- 
ment; and  to  admit  any  other  specific  facts  relevant  to  the 
issue  mentioned  in  the  notice.  In  case  of  refusal  or  neglect 
to  make  such  admission  within  such  time  as  may  be  fixed 
by  rules  or  special  order,  the  reasonable  expense  of  proving 
the  same  (to  be  taxed  by  the  court)  shall  be  paid  by  the 
party  so  notified,  whatever  the  result  of  the  trial  may  be. 


21  PRACTICE  ACT.  Sec.  20 

unless  the  trial  judge  shall  certify  that  the  neglect  or  re- 
fusal was  reasonable.  But  the  court  may  allow  any  party 
to  amend  or  withdraw  such  admission  on  terms. 

See  Rule  63. 

In  substance,  this  section  is  taken  from  the  English  Order  32, 
Rules  2,  4.  Rule  4  (but  not  Rule  2)  is  in  Courts  and  Procedure,  p. 
212,  Rule  2  relates  to  the  admission  of  documents  only. 

Within  Such  Time  As  May  Be  Fixed.  The  Rules  fix  no  time. 
Until  the  time  is  fixed  by  a  general  rule,  a  special  order  for  the 
purpose  should  be  taken  and  served,  if  th'e  admission  is  required 
before  trial. 

19.  RESERVING    QUESTIONS    OF    LAW;     SUBMITTING 
CASE  IN  ALTERNATIVE. 

The  court  may  reserve  any  question  of  law  and  may  sub- 
mit the  case  to  the  jury  upon  alternative  propositions  of 
law  in  respect  to  the  right  to  relief  or  damages.  In  either 
of  such  cases  judgment  shall  be  entered,  (and  if  appealed 
shall  be  dealt  with)  according  to  the  right  as  it  shall  be 
finally  determined. 

For  a  form  of  judgment  illustrating  this  section,  see  Form 
300.  The  section  (and  also  section  27),  are  taken  in  substance  from 
the  report  of  the  Committee  of  the  American  Bar  Association  to 
"Suggest  Remedies  and  Formulate  Proposed  Laws,"  Am.  Bar  Ass'n 
Report  (1910),  pp.  614,  620,  645.  A  discussion  of  this  provision  of  the 
report  was  had  also  in  the  previous  year,  Rep.  (1909),  pp.  64,  71. 

This  section  and  Rule  70,  under  which  the  disputed  facts  may 
be  found  by  means  of  questions  submitted  to  the  jury,  it  was 
thought,  will  afford  means  to  avoid  new  trials  in  many  cases  in 
which  the  law  applicable  to  the  facts  may  be  doubtful. 

20.  JUDGMENT;  EXECUTION. 

Judgment  may  be  given  for  or  against  one  or  more  of 
several  plaintiffs,  and  for  or  against  one  or  more  of  several 
defendants ;  and  the  court  may  determine  the  ultimate  rights 
of  the  parties  on  each  side  as  between  themselves,  and  grant 
to  the  defendant  any  affirmative  relief  to  which  he  may  be 
entitled ;  and  when  a  complaint  or  a  cause  of  action  is  sus- 
tained in  favor  of,  or  against,  only  a  part  of  the  parties  there- 
to, judgment  (interlocutory  or  final)  may  be  rendered  in 
favor  of  or  against  such  parties  respectively  at  any  stage  of 
the  proceedings.  But  an  unsatisfied  judgment  against  one, 


Sec.  21  PRACTICE  ACT.  22 

or  some,  of  several  joint  contractors,  shall  not  discharge  the 
other  joint  contractors  from  liability  on  the  contract.  The 
court  shall  control  the  proceedings  so  that  the  plaintiff  shall 
receive  but  one  satisfaction.  One  writ  of  execution  may 
issue  upon  one  or  more  judgments  entered  in  the  same  cause. 

From  Connecticut  Rules  (under  the  Pr.  Act)  124,  195.  This 
section  should  be  read  with  sections  4  and  6,  and  with  Rules  6,  7 
and  8.  The  common  law  notion  that  the  parties  on  each  side  of 
the  case  were  (with  many  exceptions),  a  unit,  appears  to  be  no 
longer  applicable  under  these  provisions.  The  common  law  con- 
ception of  parties  is  described  at  length  in  Code  Remedies,  Sections 
192,  193,  292;  and  see  Courts  and  Procedure,  page  83.  A  court  of 
law,  within  the  limits  of  its  jurisdiction,  may  now  deal  with  the 
parties  before  it  with  a  power  as  flexible  as  that  of  a  court  of 
equity.  Supra  p.  8. 

May  Determine  the  Ultimate  Rights  of  Parties  as  Between) 
Themselves.  For  illustration,  see  Forms  299,  300,  302a.  Of  course, 
the  question  adjudged  must  be  presented  in  the  pleadings. 

Grant  to  the  Defendant  any  Affirmative  Relief.  Compare  with 
Practice  Act  (1903)  Sections  34,  179.  See  Form  302. 

When  a  Complaint  *  *  *  is  sustained  in  favor  of  or  (decided) 
against  only  a  part  of  the  parties.  There  may  be  now  two  or 
more  final  judgments  against  different  defendants  on  the  same, 
or  on  different,  claims ;  or  against  the  same  defendant  on  different 
claims,  or  on  different  parts  of  one  claim.  (See  Sec.  16).  This 
was  not  allowed  under  the  old  practice.  Coles  vs.  McKenna,  So  N.  J.  L. 
48.  See  Forms  304,  305  for  illustration. 

An  appeal  may  be  taken  from  a  separate  final  judgment  against  one 
of  several  defendants  before  judgment  is  rendered  against  the  other 
defendants.  Bunnel  vs.  Berlin,  &c.,  Co.,  66  Conn.  24. 

21.  FORMS  OF  JUDGMENT. 

Judgment  may  be  entered  in  such  form  as  may  be  re- 
quired by  the  nature  of  the  case  and  by  the  recovery  or 
relief  awarded. 

For  illustration,  see  Forms  of  Judgment  300-302. 

22.  JUDGMENT  WITHOUT  PLEADING. 

Subject  to  rules,  judgment  final  may  be  entered,  without 
process  or  pleadings,  upon  a  statement  of  the  right  in  con- 
troversy and  an  agreed  statement  of  facts,  or  a  stipulation 
agreeing  upon  certain  facts  and  submitting  other  issues  in 
the  case  for  trial.  In  either  case,  subject  to  rules,  the  par- 


23  PRACTICE  ACT.  Sec.  25 

ties  may,  at  their  option,  agree  upon  the  judge  who  shall 
hear  and  determine  the  case,  and  the  judgment  of  the  court 
may  be  entered  upon  his  findings. 

See  Forms  298,  311.  This  provision  was  in  the  Common  Law 
Procedure  Act  of  1852.  Courts  and  Procedure,  p.  137.  A  somewhat 
similar  provision  is  in  Order  34,  R.  i. 

23.  AMENDMENTS. 

No  civil  suit  or  proceeding  in  any  court  of  common  law 
shall  fail  or  be  dismissed  on  the  ground  that  the  plaintiff  or 
any  party  therein  has  mistaken  the  remedy  or  procedure,  if 
the  court  in  which  the  matter  is  pending  shall  have  juris- 
diction to  grant  the  proper  remedy  by  any  procedure;  but 
in  such  case,  the  court  shall,  upon  terms,  order  the  writs, 
pleadings  and  other  proceedings  to  be  so  amended,  or  new 
writs,  pleadings  or  other  proceedings  to  be  respectively  so 
issued,  filed  or  taken,  that  the  court  may  completely  and 
finally  hear  and  determine  the  wThole  matter  in  controversy 
between  the  parties  and  grant  the  proper  remedy. 

This  is  in  addition  to  the  power  of  amendment  given  in  Prac- 
tice Act  (1903),  Sec.  126. 

24.  SAME  SUBJECT. 

In  addition  to  the  present  powers  of  amendment,  the 
court  may,  upon  terms,  permit,  before  or  at  the  trial,  the 
statement  of  a  new  or  different  cause  of  action  in  the  com- 
plaint or  counter-claim. 

A  different  cause  of  action  could  not  be  stated,  by  way  of 
amendment,  under  the  former  practice.  Doran  vs.  Tho>ii.sen,  79 
N.  J.  L.  99- 

25.  BILLS  OF  EXCEPTIONS;  WRITS  OF  ERROR;  APPEALS. 
Bills  of  exceptions  and  \vrits  of  error  in  civil  cases  are       / 

abolished.     In  lieu  of  a  writ  of  error,  an  appeal  may  be  tak- 
en in  any  case  in  which  the  appellant  would,  heretofore,        * 
have  been  entitled  to  that  writ.    Subject  to  rules,  such  appeal 
shall  be  in  the  nature  of  a  rehearing  upon  any  question  of 
law  involved  in  any  ruling,  order,  or  judgment  below.  IfT&jL*  Ci*~ 

See  Rules  77-83. 

But  objection  should  be  made  to  rulings,  and  the  grounds  of 
the  objection  stated  as  heretofore.  Sjfltc  vs.  1 1  it  miner,  73  X.  J.  L. 


Sec.  26  PRACTICE  ACT.  24 

714,  717;  State  vs.  Warady,  77  N.  J.  L.  348.  But  a  judgment  based  on 
facts  found  by  the  Court  or  jury,  but  not  involved  in  the  issues  raised 
by  the  pleadings  can  not  be  sustained  even  though  no  objection  was 
made  to  the  evidence  of  those  facts.  Stein  vs.  Coleman,  73  Conn.,  529. 

And  see  note  to  Sec.  27. 

Bills  of  exception  were  abolished  by  the  Common  Law  Pro- 
cedure Act  tof  1852.  Courts  and  Procedure,  pp.  137,  138. 

In  the  Nature  of  a  Rehearing.  From  the  English  Order,  58, 
R.  i. 

A  Step  in  the  Cause.  From  the  Common  Law  Procedure  Act 
of  1852;  see  Courts  and  Procedure,  p.  138. 

26.  SAME  SUBJECT. 

An  appeal  is  a  step  in  the  cause,  and  is  deemed  to  re- 
move to  the  appellate  court  the  entire  record  of  the  cause 
and  all  orders,  proceedings  and  documents  made,  taken  or 
filed  therein,  whether  or  not  they  are  actually  included  in 
the  transcript  of  the  record  sent  to  that  court. 

Deemed  to  Remove  the  Entire  Record  and  All  Proceedings. 
This  section  is  designed  to  remove  the  difficulty  arising  from  the 
old  rule  that  a  writ  of  error  brought  up  only  "the  record,"  and 
that  no  error  could  be  noticed  by  the  court  unless  included  in 
the  record  so  brought  up. 

See  note  to  Rule  79. 

27.  REVERSAL  OR  NEW  TRIAL  ON  MERITS. 

No  judgment  shall  be  reversed,  or  new  trial  granted  on 
the  ground  of  misdirection,  or  the  improper  admission  or 
exclusion  of  evidence,  or  for  error  as  to  matter  of  pleading 
or  procedure,  unless,  after  examination  of  the  whole  case, 
it  shall  appear  that  the  error  injuriously  affected  the  sub- 
stantial rights  of  a  party.  • 

See  Rules  72,  73,  and  note  to  Sec.   19. 

The  English  Court  of  Appeal  has  much  wider  powers  on  re- 
view than  is  given  here.  Order  48,  Rule  4;  in  Courts  and  Procedure, 

P.  221. 

Substantial  Rights.  As  to  the  meaning  of  this  phrase,  see 
supra  p.  6,  and  compare  with  Sec.  136  of  the  Criminal  Procedure 
Act  which  forbids  reversal  "for  any  error,  except  such  as  shall, 
or  may,  have  prejudiced  the  defendant  in  maintaining  his  defense 
upon  the  merits."  Comp.  St.  p.  1863 ;  and  see  cases  in  the  note  to 
that  section  on  that  page. 

See  also  notes  to  Sec.  25  and  Rule  79. 


25  PRACTICE  ACT.  Sec.  32 

28.  ADDITIONAL  EVIDENCE  UPON  APPEAL. 

Upon  appeal,  or  on  application  for  a  new  trial,  the  court 
in  which  the  appeal  or  application  shall  be  pending  may,  in 
its  discretion,  take  additional  evidence  by  affidavit  or  de- 
position, or  by  reference ;  provided,  that  the  error  complained 
of  is  lack  of  proof  of  some  matter  capable  of  proof  by  rec- 
ord or  other  incontrovertible  evidence,  defective  certifica- 
tion, or  failure  to  lay  the  proper  foundation  for  evidence 
which  can,  in  fact,  without  involving  some  question  for  a 
jury,  be  shown  to  be  competent. 

29.  PRACTICE  IN  THE  COURT  OF  ERRORS. 

Subject  to  rules  to  be  made  by  the  Court  of  Errors  and 
Appeals,  the  practice  in  that  court  upon  appeals  from  the 
Supreme  Court  or  Circuit  Court  shall  be  the  same  as  the 
practice  upon  appeals  in  the  Supreme  Court. 

30.  COSTS. 

Subject  to  rules  or  special  order,  costs  in  all  cases  may 
be  disallowed  in  the  discretion  of  the  court. 

Costs.    See  Rule  n. 

31.  ORDERS  BY  A  JUDGE. 

Subject  to  rules,  any  order  or  leave  herein  authorized  to 
be  made  or  given  by  the  court,  may  be  made  or  given  by  a 
judge  of  the  court  in  which  the  action  is  pending. 

See  Rule  2. 

32.  RULES  OF  COURT. 

In  addition  to  the  powers  given  in  sections  two  hundred 
and  fifty-three  and  two  hundred  and  fifty-four  of  the  Prac- 
tice Act,  the  Supreme  Court  shall  prescribe  rules  for  that 
court  and  for  the  Circuit  Courts  and  Courts  of  Common 
Pleas  to  give  effect  to  the  provisions  of  this  act  and  to  other- 
wise simplify  judicial  procedure.  Such  rules  shall  super- 
sede (so  far  as  they  conflict  with)  statutory  and  common 
law  regulations  heretofore  existing.  Until  such  rules  shall 
be  made,  the  rules  hereto  annexed  in  Schedule  "A"  shall 
be  deemed  to  be  the  rules  of  court,  subject  to  suspension 


Sec.  33  PRACTICE  ACT.  26 

and  amendment  in  any  part  thereof,  by  the  court,  as  ex- 
perience shall  show  to  be  expedient. 

33.  ACTIONS     PENDING     WHEN     Tins    ACT     TAKES 
EFFECT. 

Sections  twenty-live,  twenty-six,  twenty-seven,  twenty- 
eight,  twenty-nine,  and  thirty-two,  and  the  rules  in  Schedule 
A  under  Division  I,  "General  Rules,"  and  under  Division 
XII,  "Appeals"  (and  no  other  sections  or  rules),  shall  ap- 
ply to  causes  commenced  before  this  act  shall  take  effect ; 
provided,  that  the  sections  and  rules  above  mentioned  shall 
not  apply  to  any  writ  of  error  or  the  proceedings  thereon 
which  shall  have  been  issued  or  taken  before  this  act  shall 
take  effect.  (As  amended  by  Chapter  400,  Laws  of  ipi<?.) 

34.  All  acts  and  parts  of  acts  inconsistent  with  this  act 
and  the  following  sections  of  the  Practice  Act  be  and  the 
same  are  hereby  repealed,  but  nothing  in  this  repealer  shall 
impair  or  affect  any  suit  commenced  before  this  act  shall 
have  taken  effect :  sections  23,  29,  30,  31,  32,  33,  36,  37,  38, 
39,  93>  94,  95,  9&,  97,  9%,  IOI>  102,  104,  105,  no,  in, 
114,  117,  119,  121,  122,  127,  128,  130,  131,  132,  134,  141, 
154,  210,  211,  212,  213,  214  and  241. 


27 


PART  III. 
SCHEDULE  A. 

RULES  OF  COURT  UNDER  THE  PRACTICE  ACT  (1912). 

SUBJECTS. 

Rules. 

I.     GENERAL  RULES 1-5 

II.     JOINDER  OF  PARTIES  AND  CAUSES  OF  ACTION.   6-15 

III.  PLEADINGS. 

1 i )  PLEADINGS  GENERALLY 16-34 

(2)  COMPLAINT    35~37 

(3)  ANSWER   38-45 

(4)  COUNTER-CLAIM    46-49 

(5)  REPLY    50 

(6)  ACTIONS  TO  RECOVER  PERSONALTY.  .  .  .51-53 

(7)  TIME  FOR  FILING  PLEADINGS 54-56 

IV.  SUMMARY  JUDGMENT 57~6o 

V.     PRELIMINARY  REFERENCE 61-65 

VI.  DISCOVERY  OF  DOCUMENTS 66 

VII.  DAMAGES    : 67-68 

VIII.  TRIALS;  JURY'S  FINDINGS 69-71 

IX.  NEW  TRIAL  AS  TO  PART 72~73 

X.  FINDINGS  OF  FACT  BY  COURT 74~75 

XI.  JUDGMENT   76 

XII.  APPEALS 77-83 


Rule  i  RULES.  28 

I.     GENERAL  RULES. 

i.     DEFINITIONS. 

The  word  "may"  as  used  in  these  rules  is  not  mandatory. 

2..     ORDERS  BY  A  JUDGE. 

Any  order  or  leave  herein  authorized  to  be  made  or  given 
by  the  court  may  be  made  or  given  by  one  justice  or  judge 
thereof. 

See  Section  31  of  the  Act. 

3.  EXTENDING  TIME. 

The  time  limited  in  these  rules  for  the  doing  of  any 
act  may,  for  good  cause,  be  extended  (either  before  or  after 
the  expiration  of  the  time)  by  order  of  the  court  or  a  justice 
or  a  judge  thereof. 

Applications  to  extend  time  for  pleading  may  be  made  under 
this  rule. 

4.  FORMS. 

The  forms  appended  in  Schedule  B,  or  like  forms,  shall 
be  used  so  far  as  they  are  applicable. 

There  are  36  Forms  in  Schedule  B.  The  numbers  ran  from 
i  to  37,  but  Form  27  was  stricken  out  in  the  Legislature,  and  no 
change  made  in  the  following  numbers. 

All  Forms  given  in  Schedule  B  are  included  in  the  Forms 
stated  in  this  book,  but  not  in  the  same  order.  Those  which  are  taken 
from  Schedule  B,  are  so  indicated.  See  the  list  of  Forms  in  Schedule 
B,  infra  p.  74. 

5.  RULES  MAY  BE  SUSPENDED. 

These  rules  shall  be  considered  as  general  rules  for  the 
government  of  the  court  and  the  conducting  of  causes ;  and 
as  the  design  of  them  is  to  facilitate  business  and  advance 
justice,  they  may  be  relaxed  or  dispensed  with  by  the  court 
in  any  case  where  it  shall  be  manifest  to  the  court  that  a 
strict  adherence  to  them  will  work  surprise  or  injustice. 

This  is  copied  from  Rule  41  of  the  Court  of  Errors  and  Appeals. 


29  RULES.  Rule  7 

II.     JOINDER  OR  PARTIES  AND  CAUSES  OF  ACTION. 

6.  PERSONAL  REPRESENTATIVES. 

In  suits  on  a  joint  contract,  whether  partnership  or  other- 
wise, the  personal  representatives  of  a  deceased  co-contrac- 
tor may  join,  as  plaintiffs,  and  be  joined,  as  defendants,  with 
the  survivors  or  survivor;  provided,  that,  where  the  estate 
of  the  decedent  is  in  settlement  in  this  State,  as  an  insolvent 
estate,  his  personal  representatives  cannot  be  joined  as  de- 
fendants. 

This,  and  the  next  Rule,  should  be  read  with  Sections  4,  6,  20 
and  21  of  the  Act.  The  two  Rules  (6  and  7)  are  taken  from 
Rules  118  and  119  under  the  Connecticut  Practice  Act.  Rule  6 
goes  much  further  than  Section  3  of  "The  Act  Concerning  Obliga- 
tions," Comp.  St.  p.  27/6. 

7.  PERSONS  SEVERALLY  LIABLE. 

Persons  severally  and  immediately  liable  on  the  same  ob- 
ligation or  instrument,  including  parties  to  bills  of  exchange 
and  promissory  notes ;  also  indorsers,  guarantors,  and  sure- 
ties, whether  on  the  same  or  by  a  separate  instrument,  may 
all,  or  any  of  them,  be  joined  as  defendants,  and  a  joint 
judgment  may  be  rendered  against  those  so  joined.  But 
where  the  cause  of  action  against  one  person  is  not  complete 
until  after  judgment  against  another,  such  person  cannot  be 
joined  as  defendant.  Nothing  herein  contained  shall  impair 
the  provisions  of  sections  thirty-four  and  thirty-five  of  the 
Practice  Act  of  one  thousand  nine  hundred  and  three. 

See  note  to  Rule  6. 

Severally  Liable  on  the  Same  Instrument.  This  takes  the 
place  of  Section  29  of  the  Practice  Act  (1903)  in  relation  to  notes 
and  bills  of  exchange,  but  the  rule  applies  also  to  other  instru- 
ments. 

By  a  Separate  Instrument.  In  such  case  a  separate  action  was 
necessary  under  the  old  practice,  unless  the  action  was  upon  a  note  or 
bill  of  exchange. 

A  Joint  Judgment  May  Be  Rendered.  The  rule  makes  the  lia- 
bility, in  such  cases,  both  joint  and  several,  even  though,  on  it£ 
face,  it  appears  to  be  several  only.  It  is  the  counterpart  of  Sec- 
tion 3  of  the  Obligations  Act,  which  makes  joint  liabilities  several 
in  certain  cases.  Comp.  St.  3776. 


Rule  8  RULES.  yo 

8.  PARTIES  IN  ALTERNATIVE. 

Persons  may  be  joined  as  defendants  against  whom  the 
right  to  relief  is  alleged  to  exist  in  the  alternative,  although 
a  right  to  relief  against  one  may  be  inconsistent  with  a 
right  to  relief  against  the  other. 

For  illustration  see  Form  59. 

9.  ASSIGNEE. 

If  a  part  interest  in  a  contract  obligation  be  assigned,  the 
assignor  (retaining  the  remaining  interest)  and  assignee 
may  Join  as  plaintiffs. 

Compare  with  Section  19  of  the  Practice  Act  (1903).  That 
Section  was  held  not  to  authorize  the  assignment  of  part  of  a' 
contract.  Otis  vs.  Adams,  56  N.  J.  L.  38;  Stemberg  vs.  Lcliigh 
Valley  R.  R.  Co.,  78  N.  J.  L.,  277.  This  Rule  appears  to  permit 
such  an  assignment,  provided  the  assignor  and  assignee  join  as 
plaintiffs. 

A  written  contract  (upon  which  there  was  a  cause  of  action)  was 
placed  in  the  possession  of  a  person  to  secure  payment  for  his  services : 
Held,  that  this  was  an  assignment  of  a  part  interest,  and  that  the 
original  holder  of  the  contract  and  the  person  holding  it  as  security, 
could  join  as  plaintiffs  in  an  action  upon  it.  Hamilton  vs.  Lamphear, 
54  Conn.  237,  241.  A  person  admitted  on  his  own  motion  as  a  party, 
in  such  case,  need  not  file  a  new  complaint.  If  he  does  not,  he  adopts 
the  complaint  already  filed  supplemented  and  modified  by  the  allega- 
tions of  his  petition  to  be  made  a  party.  Id. 

10.  ASSIGNMENT  PENDING  SUIT. 

If,  pending  the  action,  the  plaintiff  assign  the  cause  of 
action,  the  assignee,  on  his  written  application,  may  either 
be  joined  as  co-plaintiff  or  substituted  as  a  sole  plaintiff, 
as  the  6ourt  may  order;  provided,  the  same  shall  in  no  man- 
ner prejudice  the  defense  of  the  action  as  it  stood  before 
such  change  of  parties. 

11.  COSTS  OF  DEFENDANT. 

In  all  cases  where  there  are  several  defendants,  the  court 
may  make  such  order  as  it  may  deem  just,  to  prevent  any 
defendant  from  being  embarrassed  or  put  to  expense  by  be- 
ing required  to  attend  to  any  proceedings  in  the  action  in 
which  he  may  have  no  interest ;  and  no  costs  shall  be  taxed 


31  RULES.  Rule  14 

against  any  defendant  with  which  he  is  not  justly  charge- 
able. 

See  the  Act,  Section  30. 

12.  SEPARATE  TRIALS. 

The  court  may,  upon  motion,  order  a  separate  trial  be-. 
tween  the  plaintiff,  or  one  or  more  of  several  plaintiffs,  and 
the  defendant,  or  one  or  more  of  several  defendants,  or  be- 
tween co-defendants. 

For  separate  trials  on  counter-claims,  see  the  Act,  Section  12. 

13.  "TRANSACTIONS." 

The  transactions  referred  to  in  sections  four  and  six  of 
the  Practice  Act  (1912)  include  any  transactions  which 
grew  out  of  the  subject  matter  in  regard  to  which  the  con- 
troversy has  arisen;  as,  for  instance,  the  failure  of  a  bailee 
to  use  the  goods  bailed  for  the  purpose  agreed,  and  also  an 
injury  to  them  by  his  fault  or  neglect ;  the  breach  of  a  cove- 
nant for  quiet  enjoyment,  by  the  entry  of  the  lessor,  and 
also  a  trespass  to  goods  committed  in  the  course  of  the 
entry;  or  several  torts  committed  simultaneously,  as  a  bat- 
tery accompanied  by  slander. 

See  note  to  Section  4  of  the  Act. 

14.  JOINDER  OF  CAUSES  OF  ACTION. 

(a)  In  actions  for  the  recovery  of  lands,  no  cause  of 
action  shall  be  joined  (without  leave  of  court)   except  for 
mesne  profits,  or  damages  for  breach  of  any  contract  under 
which  the  property,  or  any  part  thereof,  was  held,  or  for 
injury  to  the  property. 

(b)  Claims  by  a  trustee  in  bankruptcy,  as  such,  must 
not,  except  by  leave  of  court,  be  joined  with  any  claim  by 
him  in  any  other  capacity. 

(c)  Claims  by  or  against  any  executor  or  administrator, 
as  such,  must  not  (without  leave  of  court)  be  joined  with 
claims  by  or  against  him  personally,  unless  the  latter  claims 
arose  with  reference  to  the  estate  of  his  testator  or  intestate. 

(d)  Claims  by  plaintiffs  jointly,  may  be  joined  with 
claims  by  them,  or  any  of  them,  separately,  against  the  same 
defendant. 


Rule  15  RULES.  32 

(e)  Claims  by  or  against  husband  and  wife   may   be 
joined  with  claims  by  or  against  either  of  them  separately. 

(f)  The  court  may  strike  out  causes  of  action  which 
can  not  be  conveniently  tried  with  other  causes  of  action 
joined  in  the  same  suit. 

This  should  be  read  with  Sections  4,  6,  n,  20  and  21  of  the 
Act.  Apparently  any  of  the  causes  of  action  in  (a),  (b)  and  (c) 
respectively,  may  be  joined  by  leave  of  Court. 

See  Section  12  of  the  Act  as  to  the  causes  of  action,  which  may 
be  set  up  in  a  counter-claim. 

(c)  With  Reference  to  the  Estate.  By  implication,  and  under 
the  general  language  of  Section  n,  this  rule  appears  to  allow  the 
joinder  of  claims  against  an  Executor,  as  such,  with  claims  against 
him  individually,  if  the  individual  claims  arose  with  reference  to 
the  estate.  See  Forms  40,  307. 

(f)  For  power  to  strike  out  counter-claims,  see  the  Act  Section 
12. 

15.  OBJECTION  FOR  MJSJOINDER  of  causes  of  action  is 
waived  unless  made  on  motion,  before  answer  or  reply  re- 
spectively. 

This  motion  is  one  "addressed  to  the  complaint"  or  to  the  an- 
swer, according  as  the  objection-  is  to  the  one  or  the  other.  The 
rule  does  not,  of  course,  preclude  the  Court  from  exercising,  on 
its  own  motion,  the  power  to  strike  out,  as  given  in  Rule  14  (f). 
See  note  to  Rule  16. 

III.     PLEADINGS. 

(i)     PLEADINGS  GENERALLY. 

1 6.  ORDER  OF  PLEADINGS. 
The  order  of  pleadings  shall  be: 

1.  Complaint; 

2.  Motion  addressed  to  the  complaint; 

3.  Answer ; 

4.  Motion  addressed  to  the  answer; 
5-  Reply. 

Further  pleadings  may  be  had,  if  necessary,  until  issue  is 
joined.  Unless  otherwise  ordered  by  the  court,  pleadings 
must  be  filed,  and  motions  made,  in  the  order  mentioned 
above. 


33  RULES.  Rule  17 

Unless  Otherwise  Ordered.  Apparently,  an  objection  for  mis- 
joinder,  under  Rule  15,  may  be  made  by  leave  of  Court  after  an- 
swer has  been  filed. 

Further  Pleadings  May  Be  Had.  Xo  names  are  given  to  them. 
If  they  are  ever  used,  it  is  probable  that  the  old  names  of  "re- 
joinder" and  "surrejoinder"  will  be  applied  to  them,  as  appropriate 
terms. 

17.     FORM  OF  PLEADINGS. 

All  pleadings  must  contain  a  plain  and  concise  statement 
of  the  facts  on  which  the  pleader  relies  (and  no  others), 
but  not  of  the  evidence  by  which  they  are  to  be  proved. 

The  statement  must  be  divided  into  paragraphs  numbered 
consecutively,  each  containing,  as  nearly  as  may  be,  a  sepa- 
rate allegation. 

Dates,  sums  and  numbers,  must  be  in  figures. 

If  any  pleadings  be  insufficient,  the  court  may  order  a 
fuller  or  more  particular  statement;  and  if  the  pleadings  do 
not  sufficiently  define  the  issues,  the  court  may  order  other 
issues  prepared ;  and  may  settle  the  issues  if  the  parties  differ. 

The  first  pleading  filed  by  any  party  shall  state  his  place 
of  residence. 

The  Venue.  In  actions  in  the  Supreme  Court,  the  venue  should 
be  stated  in  the  caption  of  the  complaint,  above  the  title  (see 
Form  4). 

No  form  is  given  in  Schedule  B  for  a  caption  and  title  in  a 
Circuit  Court  case.  As  the  name  of  the  court,  in  such  case,  suffi- 
ciently shows  the  venue,  it  seems  unnecessary  to  state  the  venue 
specially,  in  actions  in  that  court. 

All  Pleadings.  The  rules  respecting  pleadings  apply  to  all 
actions  in  the  common  law  courts,  including  replevin,  ejectment, 
and  actions  on  mechanics  liens.  See  the  amendments  to  the  Eject- 
ment Act,  and  to  the  Mechanics  Lien  Act,  infra,  p.  69,  71. 

But  the  rules  respecting  pleadings  were  not  intended,  by  the 
draftsmen  of  the  Act,  to  apply  to  proceedings  upon  prerogative 
writs.  Pleadings  upon  those  writs,  it  was  thought,  should  be  left 
for  subsequent  regulation,  by  rules,  under  Section  3  of  the  Act. 

Plain.     That  is  precise,  or  certain. 

Concise.  Rule  25  expressly  forbids  unnecessary  repetition 
and  prolixity. 

On  Which  the  Pleader  Relies.  In  the  complaint,  the  facts  on 
which  he  relies  are  those  "constituting  the  cause  of  action."  (Rule 
35.)  In  answer,  they  are  those  constituting  the  defense. 


Rule    18  RULES.  34 

No  Others.  Immaterial  facts  (surplusage)  are  impertinent, 
and  are  forbidden  by  Rule  25. 

But  Not  the  Evidence.  "It  is  an  elementary  rule  in  pleading 
that,  when  a  state  of  facts  is  relied  on,  it  is  enough  to  allege  it 
simply  without  setting  out  the  subordinate  facts  which  are  the 
means  of  producing  it,  or  the  evidence  sustaining  the  allegation" 
(Lord  Denman,  C.  J.,  in  ITU  Hams  vs.  Wilcox,  8  A.  &  E.  at  page 
331).  That  is,  the  pleader  should  state  the  issuable,  but  not  the 
probative,  facts.  To  illustrate;  the  question  being  whether  A 
was  a  partner  with  B,  in  the  year  1911;  the  pleader  should  state 
that,  "The  defendant  A,  throughout  the  year  1911,  carried  on 
business,  in  Trenton,  in  partnership  with  B,"  stating  the  firm  name, 
if  there  was  one.  That  states  the  issuable  fact.  Do  not  allege  the 
facts  from  which  you  infer  the  partnership;  such  as  sharing  in 
profits  and  losses,  or  the  like.  Those  are  probative  facts.  But 
on  the  other  hand,  there  are  certain  conclusions  of  law,  which  can 
be  well  pleaded  only  by  stating  the  facts  from  which  these  con- 
clusions are  drawn.  A  bare  allegation  that  the  defendant  was 
indebted  to  the  plaintiff,  or  that  he  had,  by  fraud,  obtained  pos- 
session of  plaintiff's  goods,  without  setting  out  the  consideration 
of  the  debt  or  the  facts  constituting  the  fraud,  would  be  badt 
pleading.  The  old  practice  allowed  the  defendant  to  plead  fraud 
without  stating  the  circumstances  (Fivcy  vs.  Penna.  R.  R.  Co.,  66 
N.  J.  L.,  23);  but  this  is  probably  not  allowable  under  Rules  21  and 
40.  Under  the  English  rules,  details  of  the  fraud  must  be  speci- 
fied, whether  the  pleader  be  defendant  (Wallingford  vs.  Mutual 
Society,  5  App.  Cas.  697),  or  plaintiff  (Laurence  vs.  Lord  Norreys, 
15  Id.  221)  ;  Odgers  on  PL  &  Pr.,  p.  219. 

In  alleging  the  fact  of  agency,  it  is  bad  pleading  to  state  the  eviden- 
tial facts  showing  the  agency.  Plumb  vs.  Curtis,  66  Conn.  173. 

As  Nearly  As  May  Be  a  Separate  Allegation.  But  several  sub- 
ordinate allegations  which  combine  to  state  a  principal  fact,  may 
be  included  in  one  paragraph.  Thus,  in  form  7,  Sch.  B,  (Form  33 
in  this  book),  the  third  paragraph  states  the  fact  of  presentment 
of  a  note  for  payment,  and  in  doing  so  alleges  (i)  the  present- 
ment, (2)  the  tinue,  (3)  the  place,  and  (4)  the  non-payment. 

The  Court  May  Order  a  More  Particular  Statement.  This  is 
in  addition  to  the  power  to  order  a  bill  of  particulars  under  Rule 
18.  The  point  should  be  raised  by  an  objection  to  the  pleading  under 
Rule  27. 

1 8.     BILLS  OF  PARTICULARS  may  be  ordered  as  hereto- 
fore. 

This  rule  was  inserted  lest  the  provision  in  Rule  17,  authorizing 
the  Court  to  order  a  more  particular  statement,  should  be  held  to 
exclude  the  use  of  bills  of  particulars. 


^5  RULES.  Rule  22 

19.  UNTRUE  STATEMENTS. 

Allegations  or  denials,  made  without  reasonable  cause, 
and  found  untrue,  shall  subject  the  party  pleading  the  same 
to  the  payment  of  such  reasonable  expenses,  to  be  taxed  by 
the  court,  as  may  have  been  necessarily  incurred  by  the  other 
party,  by  reason  of  such  untrue  pleading. 
This  applies  to  all  pleadings. 

20.  STATEMENTS  NOT  DENIED  ARE  ADMITTED. 
Every  material  allegation  of  fact  in  a  pleading,  which  is 

not  denied  by  the  adverse  party,  is  deemed  to  be  admitted, 
unless  the  latter  avers  that  he  has  no  knowledge  or  informa- 
tion thereof  sufficient  to  form  a  belief. 

21.  PLEADING  ACCORDING  TO  LEGAL  EFFECT. 

Acts  and  contracts  may  be  stated  according  to  their  legal 
effect,  but,  in  so  doing,  the  pleading  should  be  such  as  fairly 
to  apprise  the  adverse  party  of  the  state  of  facts  which  it  is 
intended  to  prove;  thus,  an  act  or  promise  of  a  principal 
(other  than  a  corporation),  if.  in  fact,  proceeding  from  an 
agent  known  to  the  pleader,  should  be  so  stated;  and  the 
obligation  of  a  husband  to  pay  for  necessaries  furnished  to 
his  wife,  wh6m  he  has  driven  from  his  house,  should  be 
stated  according  to  the  facts. 

According  to  Legal  Effect.  The  most  common  use  of  this 
form  of  pleading  is  in  alleging  a  promise  by  defendant  when  the 
contract  is  implied  in  law.  See  Form  24. 

Under  a  complaint  for  money  paid  to  the  use  of  defendant  and 
money  had  and  received  to  the  use  of  plaintiff,  no  proof  can  be  al- 
lowed that  the  money  was  paid  to  defendant  by  plaintiff  under  duress. 
McVane  vs.  Williams,  50  Conn.  548. 

Under  an  allegation  that  two  persons  made  a  warranty,  evidence 
cannot  be  received  that  one  made  it  as  agent  for  the  other.  Clark  vs. 
Wooster,  79  Conn.  131. 

22.  JOINDER  OF  ISSUE. 

The  denial  of  any  material  allegation  shall  constitute  an 
issue;  no  other  joinder  of  issue  is  necessary. 

Any  Material  Allegation.  It  follows  that  there  may  be  many 
issues  under  a  single  count  in  the  complaint  and  a  single  defense 
in  the  answer.  But  no  issue  is  joined  upon  the  denial  of  an 
immaterial  fact. 


Rule  23  RULES.  36 

23.  ANNEXING  COPIES  OF  DOCUMENTS. 

In  pleading  any  document,  a  copy  thereof  may  be  an- 
nexed to  the  pleading,  and  referred  to  therein,  with  like 
effect  as  if  it  were  recited  at  length. 

Substituted  for  Section  119  of  the  Practice  Act  (1903).  That 
section  was  repealed. 

24.  INCONSISTENT  COUNTS  in  the  complaint  or  counter- 
claim, and  INCONSISTENT  DEFENSES  in  the  answer,  are  not 
objectionable. 

25.  OBJECTIONABLE  PLEADINGS. 

Unnecessary  repetition,  prolixity,  scandal,  impertinence, 
obscurity  and  uncertainty,  and  any  other  violation  of  the 
rules  of  pleading,  are  respectively  objectionable;  also  any 
pleading  which  is  irregular,  defective  or  so  framed  as  to 
embarrass  or  delay  a  fair  trial. 

Objection  for  violation  of  this  rule  should  be  made  under 
Rule  27.  See  Note  on  Pleadings ;  infra  p.  56.  See  also  notes  to  Rules 
32  and  33. 

26.  DEMURRERS  ARE  ABOLISHED.     Any  pleadings  may 
be  struck  out  on  motion  on  the  ground  that  it  discloses  no 
cause  of  action,  defense  or  counter-claim, respectively.     The 
order  made  upon  such  motion  is  appealable  after  final  judg- 
ment.   In  Heu  of  a  motion  to  strike  out,  the  same  objection, 
and  any  point  of  law  (other  than  a  question  of  pleading  or 
practice)    may  be  raised  in  the  answering  pleadings,  and 
may  be  disposed  of  at,  or  after,  the  trial ;  but  the  court,  on 
motion  of  either  party,  may  determine  the  question  so  raised 
before  trial,  and  if  the  decision  be  decisive  of  the  whole  case 
the  court  may  give  judgment  for  the  successful  party  or 
make  such  order  as  may  be  just. 

See  Rule  34. 

Discloses  No  Cause  of  Action.  If  a  cause  of  action  or  a  de- 
fense be  stated,  no  matter  how  defective  in  point  of  obscurity, 
prolixity,  or  other  defect,  the  pleading  cannot  be  struck  out  under 
this  Rule.  In  such  case  it  should  be  objected  to  under  Rule  27. 

In  Lieu  of  a  Motion  to  Strike  Out.  This  introduces  a  feature 
of  Chancery  pleadings.  See  form  186. 


37  RULES.  Rule  29 

A  demand  for  relief  not  sustained  by  the  statements  in  the 
complaint  may  be  objected  to  in  the  answering  pleading  or  on 
motion.  Rule  34. 

Other  Than  a  Question  of  Pleading  or  Practice.  These  must 
be  raised  under  Rule  27,  except  as  provided  in  Rule  34. 

At  or  After  the  Trial.  If  the  objection  be  raised  in  the  an- 
swering pleading  it  must  await  trial  before  it  can  be  heard,  unless 
the  judge,  on  motion,  will  set  it  down  specially  for  hearing  before 
trial.  If  the  objection  be  raised  by  motion,  the  motion  must  be 
made,  under  Rule  27,  before  the  answering  pleading  is  filed,  or  it 
will  be  waived.  (But  see  note  to  Rule  63). 

May  Determine  Question  Before  Trial.  Under  this  Rule  and 
Rule  2,  the  validity  of  the  complaint  or  answer  may  be  determined 
in  Supreme  Court  actions  by  a  single  judge,  on  motion,  with  little 
delay. 

27.  OBJECTIONS  TO  PLEADINGS  other  than  those  pro- 
vided for  in  Rule  26,  above,  shall  be  made  by  motion.    The 
action  of  the  court  thereon  is  appealable  after  final  judg- 
ment. 

Such  an  objection  may  be  made  before  a  commissioner  under  Rules 
63,  64. 

By  Motion.  Two  days  notice  of  all  motions  must  be  given, 
"Unless  otherwise  specially  directed."  Practice  Act  (1903),  Sec. 
190.  It  must  be  in  writing,  and  served  on  the  attorney,  if  the  party 
appears  by  attorney,  unless  otherwise  specially  provided.  Id. 
Sec.  193. 

Appealable  After  Final  Judgment.  The  appeal  will  be  of  little 
use,  unless  the  order  affect  injuriously  the  "Substantial  rights" 
of  the  appellant;  Sec.  27  of  the  Act. 

28.  OBJECTIONS  TO  PLEADINGS. 

Every  motion  addressed  to  a  pleading  must  present  every 
cause  of  objection  then  existing. 

29.  MOTIONS. 

Every  notice  of  any  motion  to  a  pleading  shall  specify 
the  grounds  thereof. 

The  Practice  Act  (1903),  Sec.  191,  contains  a  similar  provision 
and  directs  that  "Matters  not  specified  in  the  notice  shall  not  be 
considered  upon  the  hearing." 


Rule   30  RULES.  38 

30.  MATTERS  ARISING  AFTER  SUIT  BEGUN. 
Supplemental  pleadings,   showing  matters  arising  since 

the  original  pleadings  or  suit  begun,  may  be  filed  by  either 
party,  by  leave  of  court,  and  upon  terms. 
This  applies  to  both  complaint  and  answer. 

31.  OVER. 

When  an  express  agreement  or  any  document  is  referred 
to  in  a  pleading,  and  is  not  annexed  to  the  pleading  or  re- 
cited verbatim  therein,  a  copy  of  the  document  or  of  the 
agreement  (if  it  be  in  writing)  must  be  served  on  the  ad- 
verse party  within  five  days  after  service  of  written  de- 
mand for  the  same. 

32.  EVASIVE  DENIALS. 

A  denial  must  not  be  evasive,  but  must  fairly  meet  the 
substance  of  the  allegation  denied.  Thus,  if  payment  of  a 
certain  sum  be  alleged  when,  in  fact,  less  was  paid,  the 
pleader  must  not  deny  payment  generally,  but  must  state 
how  much  was  paid;  and  where  any  fact  is  alleged  with 
divers  circumstances,  some  of  which  are  untruly  stated,  the 
denial  must  not  be  of  the  fact  as  alleged,  but  so  much  as  is 
true  and  material  must  be  admitted  and  the  rest  only  denied. 

Where  Any  Fact  is  Alleged  with  Divers  Circumstances.  TQ 
illustrate:  A  paragraph  in  the  complaint  alleges  that  "plaintiff 
served  defendant,  as  janitor,  from  January  I,  1912,  to  July  i,  1912, 
in  defendant's  office  building,  800  Broad  Street,  Newark."  A  gen- 
eral denial  of  the  paragraph  would  be  insufficient  if  plaintiff  had, 
in  fact*  served  defendant  as  janitor.  A  denial  in  the  language  of 
the  complaint  would  also'  be  bad.  The  answer  should  admit  such 
of  the  facts  in  the  allegation  as  are  true,  and  deny  the  others. 

But  it  has  been  said  than  an  allegation  that  defendant  "called 
upon  several  of  plaintiff's  tenants  at  43,  45,  and  47  Bayham  Street 
and  spoke  and  published  to  them"  a  slander  of  plaintiff's  title,  is 
sufficiently  answered  by  the  statement  that  "the  defendant  never  spoke 
or  published  the  said  words;"  because  "that  answers  the  point  of 
substance,  and  the  rest  is  denied  by  implication.  To  plead  that  the 
defendant  did  not  call  on  several  of  the  plaintiff's  tenants,  &c., 
would  seem  to  admit  that  he  called  on  one  or  two  of  them;  and 
to  deny  that  he  spoke  the  words  to  any  of  the  plaintiff's  tenants, 
would  be  consistent  with  having  spoken  them  to  some  one  not  a 
tenant  of  plaintiff,  which  might  be  equally  actionable."  Odgers  on  PL 
&•  Pr.  156.  See  note  to  Rule  33. 


39  RULES.  Rule  34 

33.  CERTAINTY. 

Express  admissions  and  denials  must  be  direct,  precise, 
specific,  and  not  argumentative,  hypothetical,  or  in  the  alter- 
native; accordingly  when  a  pleader  wishes  expressly  to 
admit  or  deny  a  portion  only  of  a  paragraph  he  must  recite 
that  portion ;  except,  that  where  a  recited  portion  of  a  para- 
graph has  been  either  admitted  or  denied,  the  remainder  of 
the  paragraph  may  not  be  denied  or  admitted  without  recital. 
Admissions  or  denials  of  allegations  identified  only  by  a 
summary  or  generalization  thereof,  or  by  describing  the  facts 
alleged  as  "consistent"  or  "inconsistent"  with  other  facts  re- 
cited or  referred  to,  are  improper. 

Express  Admissions  and  Denials.  This  rule  deals  with  answers 
generally,  both  those  to  the  complaint  and  those  to  the  counter-claim. 

Direct,  Precise,  Specific.  An  allegation  that  defendant  broke 
and  entered  the  close  of  plaintiff  is  not  properly  answered  by  a 
denial  "that  defendant  broke  or  entered  the  close  of  plaintiff."  Such 
a  form  is  ambiguous.  It  may  mean  a  denial  of  either  the  entry 
or  the  ownership.  If  both  are  intended  to  be  denied  the  form  should 
be  thus: 

1.  Defendant  never  broke  or  entered  said  close. 

2.  He  denies  that  said  close  belongs  to  plaintiff. 

And  so,  if  the  complaint  allege  that  defendant  "wrongfully  dis- 
missed plaintiff  from  his  service,"  a  denial  that  defendant  "wrong- 
fully dismissed"  would  be  ambiguous.  It  may  mean  either  a  denial 
of  the  dismissal,  or  that  the  dismissal  was  justifiable. 

Not  Argumentative.  That  is,  the  denial  must  not  be  collected 
by  inference  from  the  facts  stated  in  the  answer;  Steph.  PL  384. 

Hypothetical  or  in  the  Alternative.  To  illustrate;  in  an  action 
against  a  jailer  for  an  escape,  it  was  held  that  defendant  could  not 
plead  that  if  there  had  been  an  escape  there  had  also  been  a  re- 
turn. Such  a  plea  is  hypothetical  or  in  the  alternative;  Steph.  PI.  387. 

The  remainder  of  the  paragraph  may  not  be  denied  or  admitted 
without  recital.  The  word  "not"  has  crept  into  the  sentence  by 
mistake.  It  was  not  in  the  original  draft  of  the  rule. 

Admissions  or  Denials  Identified  by  a  Summary.  But  it  is 
proper  to  plead  thus:  "Defendant  denies  the  statements  of  para- 
graph one,  except  as  hereinafter  admitted." 

See  Form  190  (18  in  Schedule  B). 

34.  A  demand  for  relief  in  the  complaint,  or  counter- 
claim,  which  the  allegations  thereof  do  not  sustain,   may 
be  objected  to,  on  motion,  or  in  the  answering  pleading, 


Rule   35  RULES.  40 

although  the  allegations  may  entitle  the  plaintiff,  or  coun- 
ter-claimant, respectively,  to  some  other  relief. 

See  note  to  Rule  26. 

(2)     THE  COMPLAINT. 

35.  THE  COMPLAINT. 

The  first  pleading  by  the  plaintiff  shall  be  the  complaint. 
It  must  contain  a  statement  of  the  facts  constituting  the 
cause  of  action,  in  accordance  with  these  rules,  and  a  de- 
mand for  relief. 

Constituting  the  Cause  of  Action.  For  a  very  clear  explanation 
of  the  phrase,  "Cause  of  action,"  see  Porncroy's  Code  Remedies, 
Sec.  452,  454,  518-520.  See  also,  /  Cyc.  641;  6  Id.  705. 

But  in  Connecticut  it  is  held,  under  rules  similar  to  these,  that 
separate  counts  and  separate  defenses  should  not  be  used  unless  the 
causes  of  action  or  defenses  are  actually  separate  and  distinct,  and 
not  merely  different  statements  of  the  same  cause  of  action  or  de- 
fense. Cases  in  illustration  of  this  interpretation  are  cited  under 
Rule  36;  and  see  Form  81,  taken  from  Connecticut  Forms. 

The  complaint  may  state  any  number  of  transactions  growing  out 
of  the  same  subject  matter  t.  e.  acts  having  some  connection  with  each 
other  by  which  the  legal  relations  of  plaintiff  and  defendant  were  al- 
tered. Lewisohn  vs.  Stoddard,  78  Conn.  500. 

The  common  counts  should  never  be  used. 

36.  COUNTS  AND  PARAGRAPHS. 

When  separate  and  distinct  causes  of  action  (as  distin- 
guished from  separate  claims  for  relief  founded  on  the  same 
cause  of  action  or  transaction)  are  joined,  the  statement 
of  the  second  shall  be  prefixed  with  the  words  "SECOND 
COLT  NT"  and  so  on  for  the  others ;  and  the  several  paragraphs 
of  each  shall  be  numbered  separately. 

Separate  and  Distinct  Causes  of  Action.  Under  this  language 
in  the  Connecticut  Rules,  it  was  held  that  a  single  count  was  good 
notwithstanding  it  set  out  a  cause  of  action  for  breach  of  contract 
by  defendant,  in  refusing  to  accept  and  pay  for  certain  machines 
ordered  from  the  plaintiff,  and  also  set  out  a  cause  of  action  for 
conversion,  by  defendant,  of  the  same  machines,  in  its  refusal  to 
allow  plaintiff  to  remove  them.  Craft  Refrigerating  Co.  vs.  Quinni- 
piac  Co.,  63  Conn.  551,  561. 

One  count  alleged  a  cause  of  action  in  tort,  viz. :  that  defendant 
by  fradulent  representations  induced  plaintiff  to  part  with  his  horse, 


41  RULES.  Rule  37 

and  also  a  cause  of  action  on  contract,  viz.:  that  defendant  failed  to 
deliver,  as  he  had  agreed,  a  certain  mare  in  exchange  for  the  horse 
which  he  had  received  from  plaintiff.  Held  (i)  that  the  dealings  with 
reference  to  the  exchange  of  horses  was  the  transaction  out  of  which 
the  cause  of  action  grew;  (2)  that  the  whole  transaction  could  be 
stated  in  one  count;  (3)  that  plaintiff  was  entitled  to  submit  to  the 
court  the  question  whether  the  evidence  entitled  him  to  recover  upon 
the  contract  or  upon  the  fraud.  Knapp  vs.  Walker,  73  Conn.  459. 

These  two  decisions  seem  to  apply  to  cases  in  which  the  plaintiff 
can  not  be  sure,  whether  the  proofs  at  the  trial  will  disclose  a  case 
of  contract  or  of  tort.  They  are  not  cases  to  which  the  doctrine  of 
election  of  actions  will  apply.  See  that  subject  discussed  at  p.  65. 

It  is  not  necessary  to  state  the  same  cause  of  action  in  different 
counts  in  order  to  meet  possible  variances  in  the  evidence,  but  "there 
may  possibly  be  cases  where  a  plaintiff  should  be  at  liberty  to  do  so." 
"In  all  cases  of  material  variance  an  amendment  is  permitted  at  any 
stage  of  the  trial."  Bassett  vs.  Shares,  63  Conn.  39 ;  Baxter  vs.  Camp, 
71  Conn.  251. 

In  an  action  against  a  railroad  company,  plaintiff  was  held  entitled 
to  allege  in  one  count  that  she  was  "hurled  to  the  ground  in  jumping 
from  the  car,"  and  also  that  she  was  "hurled  to  the  ground  when 
just  ready  to  jump."  "She  was  entitled  to  allege  what  was  substan- 
tially the  same  facts  in  different  forms  to  meet  the  possible  conditions 
of  testimony."  But  double  statements  are  improper  when  plainly  un- 
necessary, or  when  one  of  them  is  known  to  the  pleader  to  be  false. 
Brockett  vs.  Fair  Haven,  &c.  R.  R.  Co.,  73  Conn.  432. 

When  property  is  sold  on  time  and  several  notes  given  at  the  same 
time  for  instalments  of  the  price,  after  all  fall  due  the  creditor  may, 
in  one  count  of  his  complaint  allege  the  total  debt  and  that  it  is  evidenced 
by  the  several  notes.  Morse  vs.  Frost,  54  Conn.  84 

37.  ALTERNATIVE  RELIEF. 

Plaintiff  may  claim  alternative  relief  based  upon  an  alter- 
native construction  or  ascertainment  of  his  cause  of  action. 
Alternative  Relief.     For  illustration,  see  Form  81. 

(3)     THE  ANSWER. 

38.  DILATORY  PLEAS.  . 

Pleas  to  the  jurisdiction  and  pleis  in  abatement  are 
abolished.  In  lieu  thereof  objection  shall  be  made  on  mo- 
tion. The  evidence  necessary  to  determine  the  question 
may  be  taken  by  affidavit,  or  as  the  court  may  direct.  The 
action  of  the  court  upon  such  motion  may  be  reviewed  on 
appeal  after  final  judgment. 


Rule   39  RULES.  42 

This  objection  must  be  made  before  a  judge,  not  before  a 
Commissioner.  Rule  63. 

Or  as  the  Court  may  Direct.  Doubtless,  in  a  proper  case,  the 
Court  would  order  an  issue  prepared  and  direct  it  to  be  tried  by 
a  jury.  At  common  law,  the  Court  had  a  similar  discretion  in  cer- 
tain cases;  for  instance,  when  the  issue  was  upon  the  fact  of  in- 
fancy, the  Court  could  try  the  issue  or  submit  it  to  a  jury.  3  Blackst. 
332. 

39.     SEVERAL  DEFENSES. 

Where  several  defenses  are  pleaded,  each  must  refer  to 
the  cause  of  action  which  it  is  intended  to  answer,  and  must 
be  separately  stated  and  designated  as  a  separate  defense; 
thus:  FIRST  DEFENSE,  SECOND  DEFENSE,  etc.  Where  the 
complaint  is  for  more  than  one  cause  of  action,  set  forth 
in  several  counts,  each  separate  matter  of  defense,  should  be 
preceded  by  a  designation  of  the  cause'  of  action  which  it  is 
intended  to  meet,  in  this  manner :  FIRST  DEFENSE  TO  FIRST 

COUNT,    SECOND   DEFENSE   TO   FIRST    COUNT,    FIRST   DEFENSE 

TO  SECOND  COUNT,  and  so  on.  Any  statement  of  a  matter 
of  defense,  raised  in  part  upon  facts  pleaded  in  any  preced- 
ing statement  in  the  same  answer,  may  refer  to  those  facts 
as  thus  recited,  without  otherwise  repeating  them. 

The  answer  need  not  be  verified.  The  commencement  of  the 
answer  must  state  the  title  of  the  cause  and  the  residences  of  the 
answering  defendants.  Rule  17  and  Form  183. 

In  actions  in  the  Supreme  Court,  state  the  venue  above  the 
title.  See  form  14  in  Schedule  B  (Form  184  in  this  book). 

The  Rule  Prohibits  Duplicity  in  Pleading  in  the  Answer.  Each 
defense  must  be  a  single  defense.  But  Form  189  (17  in  Sch.  B), 
states  the  general  denial  in  one  paragraph  and  a  release  in  another, 
without  the  captions  "First  defense,  Second  defense."  Apparently, 
therefore,  the  general  denial  may  be  used  in  the  same  statement 
with  another  defense,  separated  only  by  a  paragraph. 

Allegations  which  merely  go  to  the  denial  or  explanation  of 
statements  of  the  complaint,  need  not  be  stated  as  a  separate  de- 
fense. Only  facts  constituting  an  affirmative  defense  (e.  g.,  tender, 
payment,  contributory  negligence,  and  the  like)  of  which  defend- 
ant assumes  the  burden  of  proof,  should  be  stated  as  a  separate 
defense. 

In  an  action  on  a  life  insurance  policy,  the  general  allegation  in 
the  complaint  of  performance  of  conditions  precedent  should  not  be 
denied  in  toto  unless  defendant  intends  in  good  faith  to  deny  the 
performance  of  every  one  of  the  conditions  precedent.  The  defense 


43  RULES.  Rule  40 

that  several  of  the  representations  made  by  the  insured  were  false  is 
a  single  defense;  it  is  bad  pleading  to  state  them  as  separate  defenses. 
Hennessy  vs.  Metropolitan  Life  Ins.  Co.,  74  Conn.  702. 

Separate  and  distinct  causes  of  action,  should  be  set  out  in 
separate  counts,  and  matters  of  defense  appropriate  to  one  of  them 
only  should  be  separately  stated.  But  in  ordinary  cases  brought  on  a 
single  cause  of  action,  or  when  founded  on  a  transaction  which  may 
give  rise  to  several  causes  of  action  not  clearly  distinguishable  from 
each  other,  all  matter  of  fact  involved  in  the  defense  should  be  com- 
bined in  a  single  answer,  divided  only  by  paragraphs.  Botsford  vs. 
Wallace,  72  Conn.  200;  Simonds  vs.  East  Windsor  Elect.  R.  R.  Co., 
73  Conn.  513. 

40.     GENERAL  AND  SPECIAL  DENIAL. 

The  answer  must  specially  deny  such  allegations  of  fact 
in  the  complaint  as  defendant  intends  to  controvert,  unless 
he  intends  in  good  faith  to  controvert  all  the  allegations ;  in 
that  case  he  may  deny  them  generally.  It  must  specially 
state  any  defense  which  is  consistent  with  the  truth  of  the 
material  allegations  of  the  complaint,  and  any  defense  which, 
if  not  stated,  would  be  likely  to  cause  surprise,  or  would 
raise  issues  not  arising  out  of  the  complaint.  For  instance, 
the  statute  of  frauds,  or  of  limitations,  release,  payment, 
performance,  fraud  or  facts  showing  illegality,  or  contribu- 
tory negligence. 

As  Defendant  Intends  to  Controvert.  Unreasonable  denials 
subject  the  pleader  to  the  risk  of  costs.  Rule  19. 

Intends  to  Controvert  All.  Under  the  general  denial  defendant 
is  limited  to  contradicting  or  rebutting  plaintiff's  evidence.  The 
general  denial  should  be  seldom  used  with  special  denials  of  particular 
facts,  or  particular  parts  of  the  complaint.  It  will  be  an  unsafe  defense 
to  rely  upon  solely  when  defendant  expects  to  contest  only  a  single 
point  in  plaintiff's  case,  such  as  the  delivery  of  goods  after  an  un- 
disputed contract  of  sale,  or  an  implied  request  to  perform  ser- 
vices when  the  service  was  rendered  under  a  mistake  (say,  painting 
the  wrong  fence);  for  an  answer  "must  specially  state  any  defense 
*  *  *  which,  if  not  stated,  would  be  likely  to  cause  surprise"  Rule  40. 
And  Rule  21  requires  acts  which  are  stated  according  to  their  legal 
effect  to  be  so  pleaded  "as  fairly  to  apprise  the  adverse  party  of 
the  state  of  facts  which  it  is  intended  to  prove." 

It  is  improper  to  plead  the  general  denial  when  the  real  defense 
is  matter  in  avoidance.  Hatch  vs.  Thompson,  67  Conn.  76;  Church  vs. 
Pearne,  75  Conn.  350.  And  see  Hennessy  vs.  Metropolitan  &c.  Ins.  Co., 
cited  under  Rule  39. 


Rule  41  RULES.  44 

41.  TENDER;  PAYMENT  INTO  COURT. 

Any  party  upon  whom  a  claim  for  debt  or  damages 
(liquidated  or  unliquidated)  is  made,  may  tender  to  the 
claimant  a  sum  of  money  in  payment  thereof,  which  tender 
may  be  pleaded,  and  in  all  respects  shall  be  as  effectual  as  a 
tender  in  case  of  a  claim  for  debt  has  heretofore  been. 

Debt  or  Damages  (Liquidated  or  Unliquidated.)  A  tender  un- 
der this  rule  may  be  made  in  an  action  for  a  tort. 

As  Effectual.  That  is,  it  saves  costs  if  the  verdict  do  not  ex- 
ceed the  amount  of  the  tender;  and,  in  a  proper  case,  it  stops  the 
accrual  of  interest. 

j 

42.  PAYMENT  INTO  COURT  by  defendant,  upon  plain- 
tiff's claim,  shall  be  an  admission  of  the  cause  of  action  in 
respect  to  which  it  is  made;  but  not  so,  if  the  answer  denies 
the  cause  of  action.     The  payment  shall  be  pleaded  or  (if 
made  after  answer  filed)  notice  thereof  shall  be  given  to  the 
plaintiff. 

Payment  into  Court.  A  plea  (or  defense)  of  tender  must  al- 
way  be  accompanied  by  payment  into  Court. 

Notice  Shall  Be  Given.  Apparently,  the  tender  may  be  made 
and  the  notice  given,  at  any  time  before  trial. 

43.  SAME  SUBJECT. 

If  plaintiff  accept  such  payment  before  judgment,  it  shall 
be  in  satisfaction  of  the  cause  of  action  in  respect  to  which 
the  payment  was  made,  except  as  to  costs.  If  plaintiff  do 
not  so  accept,  the  money  shall  be  paid  to  the  defendant  if  he 
recover  judgment;  but  if  plaintiff  recover,  it  shall  be  applied 
upon  his  judgment  to  the  extent  thereof,  and  the  surplus, 
if  any,  shall  be  paid  to  the  defendant. 

44.  SAME  SUBJECT. 

Plaintiff,  in  reply  to  a  counter-claim,  may  pay  money 
into  court  in  satisfaction  thereof,  subject  to  the  like  condi- 
tions as  to  costs  and  otherwise  as  upon  such  payment  by  a 
defendant. 

45.  SAME  SUBJECT. 

Neither  tender  nor  payment  into  court  shall  be  made 
known  to  the  jury. 


45  RULES.  Rule  51 

Shall  Not  Be  Made  Known  to  the  Jury.  This  Rule  appears 
to  qualify  the  provision  in  Rule  69  that  defendant's  case  must  be 
opened  to  the  extent,  at  least,  of  the  statements  in  his  answer. 

(4)     COUNTER-CLAIM. 

46.  A   COUNTER-CLAIM   may  be   stated   in   the  answer, 
being  introduced  substantially  thus :     "By  way  of  counter- 
claim against"  ( stating  the  parties  against  whom  the  coun- 
ter-claim is  made,  and  designating  as  "third  parties"  those 
not  made  parties  in  the  complaint). 

See  Section  12  of  the  Act. 

May  Be  Stated  in  the  Answer.  It  may,  at  defendants'  option, 
be  stated  in  a  separate  pleading.  See  Form  266  (14  in  Schedule  B). 

47.  CROSS  ACTION. 

A  counter-claim  is  deemed  to  be  a  cross  action,  and  the 
rules  respecting  the  form  and  manner  of  pleading  the  com- 
plaint, apply  to  the  counter-claim. 

48.  AMOUNT  OF  RECOVERY. 

If  the  amount  found  due  on  the  counter-claim  to  the  de- 
fendant exceeds  the  amount  found  due  to  the  plaintiff,  the 
defendant  shall  have  judgment  for  the  excess. 

49.  Where  a  co-defendant  is  made  a  party  to  a  counter- 
claim, a  copy  thereof  shall  be  delivered  to  him  or  his  at- 
torney within  five  days  after  the  same  is  filed. 

(5)     REPLY. 

50.  REPLY. 

A  reply  may  contain  two  or  more  distinct  avoidances  of 
the  same  defense  or  counter-claim,  but  they  must  be  separ- 
ately stated  and  numbered,  and  the  rules  respecting  the  form 
and  manner  of  pleading  in  the  answer  apply  to  the  reply. 

(6)     ACTIONS  TO  RECOVER  PERSONALTY. 

51.  In  actions  to  recover  personalty,  title  (in  plaintiff  or 
defendant)  which  rests  on  a  special  property  must  be  plead- 
ed by  stating  the  facts  constituting  the  special  property. 

For  illustration,  see  Form  180. 


Rule   52  RULES.  46 

The  action  of  detinue  was  in  use,  in  this  State,  in  the  former 
practice.  A  complaint,  such  as  is  given  in  Form  178,  may  be  used 
with  an  ordinary  writ  of  summons,  in  lieu  of  the  action  of  detinue, 
when  the  plaintiff  does  not  desire  to  replevy  the  goods;  or,  the  same 
form  of  complaint  may  be  used  with  a  writ  of  replevin,  with  direc- 
tions to  the  Sheriff  not  to  take  the  goods,  under  Section  33  of  the 
Replevin  Act.  Comp.  St.  p.  4376. 

52.  When  the  taking  was  wrongful  a  general  statement 
of  unlawful  taking  is  sufficient,  but  when  the  action  is  for 
a  wrongful  detainer  only,  a  demand  and  refusal  of  posses- 
sion, before  beginning  the  action  (or  serving  the  writ)  must 
be  alleged. 

See  Forms  178,  179,  for  illustration. 

53.  All  defense,  including  those  in  the  nature  of  avowry, 
cognizance,  and  disclaimer,  shall  be  made  by  answer.     If 
the  defense  be  title  in  defendant  or  in  a  third  person,  the  an- 
swer must  state  it  according  to  the  fact.    If  defendant  claims 
a  return  of  the  goods  or  damages,  he  must  make  the  claim 
by  counter-claim. 

For  "defense,"  read  "defenses." 
For  illustration,  see  Form  263. 

(7)     TIME  FOR  FILING  PLEADINGS. 

54.  The  complaint  shall  be  annexed  to  the  summons  or 
capias  ad  respondendum  and  returned  therewith ;  and  a  copy 
thereof  shall  be  served  with  the  summons  or  capias. 

55.  The  answer  or  counter-claim  shall  be  filed  within 
twenty  (20)  days  after  service  of  the  summons  and  com- 
plaint.    If  further  pleadings  be  necessary,  they  shall  be  filed 
within  twenty  (20)  days,  each  after  the  other. 

The  answer  need  not  be  sworn  to. 

.56.     AFFIDAVIT  OF  MERITS. 

In  actions  on  contract  plaintiff  may  enter  judgment  unless 
the  defendant  or  his  agent  or  attorney  shall,  within  ten  days 
after  personal  service  of  complaint,  file  an  affidavit  of  merits, 
stating  that  the  affiant  believes  that  the  defendant  has  a  just 
and  legal  defense  to  the  action  on  the  merits  of  the  case; 
provided,  a  notice  be  endorsed  on  the  complaint  and  on  the 


47  RULES.  Rule  58 

copy  served  that  if  defendant  intends  to  make  a  defense  he 
must  file  an  affidavit  of  merits  within  ten  days  of  such  serv- 
ice and  an  answer  within  twenty  days  therefrom ;  and  that  in 
default  thereof  judgment  will  be  entered  against  him.  Law- 
ful service  upon  a  corporation  shall  be  deemed  personal  serv- 
ice for  the  purpose  of  this  rule. 

On  Contract.  No  affidavit  of  merits  can  be  required  in  an  ac- 
tion upon  a  tort. 

Within  Ten  Days.  The  time  may  be  extended  by  order  of  a 
judge,  either  before  or  after,  it  expires.  Rule  3. 

Personal  Service.  The  affidavit  is  not  required  unless  the 
service  is  personal,  except  in  the  case  of  a  corporation  defendant. 

A  Notice  Be  Endorsed.  The  affidavit  is  not  required  unless 
the  notice  is  endorsed  on  the  original  complaint  and  on  the  copy 
served. 

Service  Upon  a  Corporation.  The  effect  of  this  Rule  is  to  re- 
quire an  affidavit  of  merits  from  a  corporation  defendant,  lawfully 
served  with  process  and  a  complaint  endorsed  as  provided  in  this 
rule,  in  every  case  except  a  case  of  tort. 

IV.     SUMMARY  JUDGMENT. 

57.  When  an  answer  is  filed  in  an  action  brought  to  re- 
cover a  debt  or  liquidated  demand  arising — 

(a)  Upon  contract  express  or  implied,  sealed  or  not 
sealed ;  or, 

(b)  Upon  a  judgment  for  a  stated  sum;  or, 

(c)  Upon  a  statute; 

the  answer  may  be  struck  out  and  judgment  final  may  be 
entered  upon  motion  and  affidavit  as  hereinafter  provided, 
unless  the  defendant  by  affidavit  or  other  proofs  shall  show 
such  facts  as  may  be  deemed,  by  the  judge  hearing  the  mo- 
tion, sufficient  to  entitle  him  to  defend. 

5jj^  the  Act,  Section  15.  For  illustration  of  this,  and  the  next 
Rules,  see  Forms  296,  297,  284,  285,  286. 

58.  The  motion  to  strike  out  shall  be  made  upon  affida- 
vit of  the  plaintiff  or  that  of  any  other  person  cognizant  of 
the  facts,  verifying  the  cause  of  action,  and  stating  the 
amount  claimed  and  his  belief  that  there  is  no  defense  to 
the  action. 


Rule  59  RULES.  48 

59.  If  it  appear  that  such  defense  applies  only  to  p:irt 
of  plaintiff's  claim,  or  that  any  part  is  admitted,  the  plaintiff 
may  have  final  judgement   forthwith   for  so  much  of  his 
claim  as  the  defense  does  rot  apply  to  or  as  is  admitted,  sub- 
ject to  such  terms  as  may  be  deemed  just. 

Final  Judgment  Forthwith.  See  note  to  Section  20  of  the  Act, 
and  note  to  Form  232. 

60.  Leave  to  defend  may  be  given  unconditionally,  or 
upon  such  terms  as  to  giving  security,  or  time  or  mode  of 
trial,  or  otherwise,  as  may  be  deemed  just. 

V.     PRELIMINARY  REFERENCES. 

61.  The  Supreme  Court  may  designate  for  each  county 
one  of  the  Supreme  Court  Commissioners  (and  if  necessary, 
more  than  one),  removable  at  pleasure,  who  shall  have  the 
authority  herein  given. 

62.  Within  ten  days  after  a  cause  shall  be  at  issue,  either 
party  may  take  out  a  summons,  substantially  in  the  form  in 
Schedule  "B,"  and  serve  the  same  upon  the  opposite  part} 
or  his  attorney  at  least  four  days  before  the  return  day. 
The  summons  need  not  be  served  upon  a  party  who  is  in  de- 
fault.   The  court  may,  on  its  own  motion,  at  any  time,  order 
the  preliminary  reference  herein  provided  for. 

For  illustrations  of  this  and  the  next  Rules,  see  Forms  309,  310. 

At  Issue.  This  means,  of  course,  at  issue  on  all  the  pleadings. 
If  a  general  denial  be  made  to  one  count  of  the  complaint  and  new 
matter  stated  to  the  other  count,  the  case  would  not  be  at  issue 
until  issue  is  joined  by  a  reply. 

63.  Upon  the  return  of  the  summons  or  at  an  adjourn- 
ment of  the  matter,  the  commissioner,  after  hearing  the 
parties  or  their  attorneys  (but  not  their  evidence),  shall,  on 
the  application  of  any  party,  make  such  order  as  the  court 
might  make  and  as  may  be  just  in  respect  to  the  following 
matters,  subject  to  an  appeal  within  five  days  to  a  judge  of 
the  court  in  which  the  action  is  pending : 


49  RULES.  Rule  63 

Objections  to  pleadings  (other  than  those  provided  for 
in  Rules  26  and  38),  amendments  thereof,  and  leave  for 
additional  pleadings; 

Settlement  of  issues ; 

Bills  of  particulars; 

Admissions ; 

Interrogatories ; 

Discovery  of,  and  inspection  of  books,  papers  or  other 
documents ; 

Examination  of  parties  before  trial; 

Any  other  interlocutory  matter  preliminary  to,  and  in 
preparation  for,  trial,  but  not  including  postponement  of 
trial. 

The  order  of  the  commissioner  shall  be  deemed  the  order 
of  the  court  until  reversed. 

All  motions  in  respect  of  any  of  the  foregoing  matters, 
whether  made  before  or  after  issuing  the  commissioner's 
summons,  may  be  heard  and  determined  by  the  commissioner 
subject  to  appeal  as  aforesaid. 

The  commissioner's  order  shall  be  as  nearly  as  practic- 
able in  the  form  stated  in  Schedule  "B." 

Illustrations  of  the  Rule  may  be  found  in  Forms  309,  310.  Any 
matter  mentioned  in  this  Rule  may  be  the  subject  of  a  special  mo- 
tion before  the  Commissioners'  summons  is  issued. 

But  Not  Their  Evidence.  That  is,  he  is  not  entitled  to  in- 
quire into  the  evidence  farther  than  the  performance  of  the  duties 
imposed  upon  him  in  this  rule  requires. 

Objections  to  Pleadings.  Rule  16  requires  a  motion  addressed 
to  a  pleading  to  be  made  before  the  answering  pleading  is  filed. 
But  the  preliminary  reference  can  be  held  only  after  issue  is  joined. 
The  two  provisions  may  be  harmonized  by  holding  that  the  Com- 
missioner may  hear  such  objections  to  the  pleadings  as  he  may 
give  leave  to  make,  under  the  authority  conferred  upon  the  Court 
in  the  last  paragraph  of  Rule  16,  as  contained  in  the  words,  "unless 
otherwise  ordered  by  the  Court."  Rule  63  authorizes  the  com- 
missioner to  make  such  order  in  respect  to  the  matters  mentioned 
in  it  as  the  court  may  make. 

Settlement  of  Issues.    See  Rule  17. 

Admissions.  No  admission  can  be  compelled.  The  design  is 
that  the  Commissioner,  in  order  to  expedite  the  trial,  should  en- 
deavor to  ascertain  and  set  down  those  relevant  facts  which  are 
undisputed  but  which  are  not  admitted  in  the  pleadings. 


Rule   64  RULES.  50 

Examination  of  Parties.  If  this  be  ordered,  it  must  be  in  ac- 
cordance with  Sections  144-146  of  the  Practice  Act  (1903). 

Discovery.     See  note  to  Rule  66. 

Before  or  After  the  Issuing  of  Commissioners'  Summons.  He 
may  hear  objections  to  pleadings,  on  two  days  notice,  before  the 
answering  pleading  is  filed.  See  Rule  64. 

64.  Prior  or  subsequent  applications  or  motions  in  the 
cause  before  trial  may  be  made  to  the  commissioners  on  two 
days'  notice. 

See  notes  under  Rules  27,  29  and  63. 

65.  If  plaintiff  fail  to  take  out  and  proceed  upon  the 
summons  as  herein  directed,  when  so  ordered,  he  may  be- 
come non-prossed.     If  defendant  fail  to  appear  he  shall  not 
appeal  from  the  order  except  by  leave  of  the  commissioner 
or  the  court. 

VI.     DISCOVERY  OF  DOCUMENTS. 

66.  Any  party  may,  without  affidavit,  apply  for  an  or- 
der directing  any  other  party  to  make  discovery  on  oath  of 
the  books,  papers  or  other  documents,  which  are,  or  have 
been,  in  his  possession  or  under  his  control  relating  to  any 
matter  in  question  in  the  cause.     The  granting  of  the  order 
shall  be  discretionary,  as  to  the  whole  or  any  part  of  the 
discovery  a'pplied  for. 

This  application  may  be  made  to  a  Commissioner  under  Rules 
63,  64. 

To  Make  Discovery.  If  the  order  provided  for  in  this  Rule  be 
granted,  it  will  direct  no  more  than  that  the  opposite  party  submit, 
under  oath,  a  list  of  documents  relevant  to  the  issues.  After  ex- 
amining the  list,  if  the  applicant  desires  inspection  of  the  documents 
themselves,  or  any  of  them,  he  must  apply  under  Sections  142  and 
143  of  the  Practice  Act  (1903).  See  paragraph  6  of  Form  310,  for 
illustration. 

VII.     DAMAGES. 

67.  Where  damages  are  to  be  determined  in  respect  of 
any  continuing  cause  of  action,  they  shall  be  determined  to 
the  time  of  the  assessment  or  trial. 

Continuing  Cause  of  Action.  Such,  for  instance,  as  a  nuisance 
or  an  obstruction  to  a  way. 


51  RULES.  Rule  70 

68.  ASSESSMENT  OF  DAMAGES;  WRIT  OF  INQUIRY. 

The  party  entering  judgment  by  default,  in  lieu  of  tak- 
ing out  a  writ  of  inquiry,  may,  at  his  option,  give  fifteen 
days'  notice  that  the  damages  will  be  assessed  by  a  jury 
drawn  from  the  general  panel ;  and  upon  serving  and  filing 
the  notice  the  damages  shall  be  assessed  by  such  jury  dur- 
ing its  attendance  at  the  circuit,  under  the  directions  of  a 
justice  or  judge.  And  all  writs  of  inquiry  shall,  on  appli- 
cation of  either  party,  be  executed  under  the  directions  of 
a  justice  or  judge,  or  a  Supreme  Court  commissioner  to  be 
designated  by  a  judge  or  justice. 

At  His  Option.  The  damages  may  still  be  assessed  by  a  Sher- 
iff's jury,  if  the  party  entitled  so  elect;  but  in  such  case,  either  party 
is  entitled,  if  he  choose  to  apply,  to  have  a  judge  or  a  Supreme 
Court  Commissioner  conduct  the  trial. 

VIII.     TRIALS;  JURY'S  FINDINGS. 

69.  OPENING  CASE. 

At  trials,  immediately  after  the  plaintiff's  opening,  and 
before  any  evidence  taken,  defendant's  counsel  shall  open 
his  case  to  the  jury  to  the  extent,  at  least,  of  the  statement 
of  his  answer. 

See  note  to  Rule  45. 

70.  The  court  may  request  the  jury  to  return  answers 
to  written  questions  embracing  the  disputed  facts  in  issue 
and  the  amount  of  damages.     The  questions  and  answers 
shall  be  entered  upon  the  minutes  and  the  court  may  enter 
a  general  verdict.     In  case  of  a  rule  to  show  cause  for  a 
new  trial,  or  an  appeal,  a  statement  of  the  case,  including! 
the  questions  and  answers,  shall  be  prepared  and  filed  and 
shall  have  the  effect  of  a  special  verdict.     In  considering1 
the  case  upon   review,   the  court   may  draw   inference  of 
fact. 

For  "inference,"  read  "inferences." 

If  the  practice  allowed  by  this  Rule  be  generally  and  intelli- 
gently followed,  it  should,  with  the  help  of  the  provisions  of  Rules 
72  and  73  and  Section  27  of  the  Act,  diminish  the  number  of  new 
trials.  It  is  the  customary  practice  in  England.  See  Courts  and 
Procedure,  p.  170. 


Rule   71  RULES.  52 

May  Enter  a  General  Verdict.  In  accordance  with  the  answers 
to  the  questions.  Not  only  the  verdict  but  also  the  entry  of  the 
questions  and  answers  in  the  minutes  are  brought,  upon  appeal, 
before  the  appellate  court  under  Section  26  of  the  Act. 

A  Statement  of  the  Case.    For  illustration,  see  Form  314. 

The  Court  May  Draw  Inferences  of  Fact.  Under  the  former 
practice,  this  power  was  sometimes  given  by  stipulation  in  the 
statement  of  a  special  case. 

71.  The  statement  of  the  case  shall  be  prepared  by  the 
moving  party  and  served  on  the  adverse  party.     Objections 
thereto  (if  any)  must  be  made  within  five  days  from  ser- 
vice, and  in  that  event  the  statement  of  the  case  shall  be 
settled  by  the  trial  judge. 

See  Rule  Si. 

IX.     NEW  TRIAL  AS  TO  PART. 

72.  In  case  a  new  trial  is  granted  it  shall  only  be  a 
new  trial  of  the  question  or  questions  with  respect  to  which 
the  verdict  or  decision  is  found  to  be  wrong,  if  separable. 

This  Rule  is  taken  from  the  report  of  a  committee  of  the  Ameri- 
can Bar  Association.  See  Report  Am.  Bar  Ass'n.  (1910),  p.  645.  A 
similar  provision  is  in  Section  27  of  the  Connecticut  Practice  Act. 

73.  NEW  TRIAL  AS  TO  DAMAGES  ONLY. 

When  a  new  trial  is  ordered  because  the  damages  are 
excessive  or  inadequate,  and  for  no  other  reason,  the  ver- 
dict shall  be  set  aside  only  in  respect  of  damages,  and  shall 
good  in  all  other  respects. 

X.     FINDINGS  OF  FACT  BY  COURT. 

74.  In  trials  without  a  jury,  a  finding  of  the  facts  in  is- 
sue, signed  by  the  trial  judge,  shall  be  filed  and  entered  on 
the  record.     In  actions  in  the  Supreme  Court  the  findings 
shall  be  included  in  the  postea.    Upon  request  of  any  party, 
the  rulings  of  the  court  upon  any  point  of  law  involved  in 
the  decision  or  judgment  shall  be  stated  in  the  findings. 

For  illustration,  see  Form  312. 


53  RULES.  Rule  78 

75.  A  general  finding  in  favor  of  the  plaintiff  or  de- 
fendant, respectively  is  deemed  to  be  a  finding  in  his  favor 
of  all  the  material  allegations  put  in  issue. 

Where  only  part  of  the  material  allegations  put  in  issue 
are  found  for  the  prevailing  party,  the  finding  must  indn 
cate  the  particular  facts  that  are  found. 

XL     JUDGMENT. 

76.  In  actions  in  the  Supreme  Court,  the  postea  may 
be  filed  immediately  after  relicta  given  or  verdict  obtained 
and  judgment  shall  be  entered  forthwith.     But  the  trial 
judge  of  the  court,  or  any  justice  thereof,  may  stay  execu- 
tion pending  an  application  for  a  new  trial. 

Trial  Judge  of  the  Court.     Read  "or"  instead  of  "of." 

XII.     APPEALS. 

77.  TIME  OF  NOTICE. 

Appeals  shall  be  taken  by  notice,  which  shall  be  served 
on  the  adverse  party  and  filed  within  the  time  limited  for 
bringing  writs  of  error,  and  at  least  thirty  days  before  the 
appeal  is  argued. 

*  The  notice  shall  be  entitled  in  the  court  from  which,  and 
shall  state  the  court  to  which,  the  appeal  is  taken,  and  shall 
be  filed  with  the  clerk  of  the  former  Court,  who  shall  forth- 
with transmit  to  the  appellate  Court  a  transcript  of  every- 
thing required  to  be  removed  under  section  26,  of  the  Prac- 
tice Act  (1912)  together  with  a  certified  copy  of  the  notice 
of  appeal. 

The  paragraph  of  this  Rule  beginning  with  the  asterisk  was 
added  by  an  amendment  to  the  Rules  made  by  the  Supreme  Court 
in  September,  1912. 

See  the  Act,  Sections  25,  26.     See  Form  313. 

78.  No  SEVERANCE. 

No  severance  of  parties  is  necessary,  but  any  party  en- 
titled, but  refusing  to  join  in  the  appeal,  shall  be  served  with 
notice  ofvappeal. 


Rule   79  RULES.  54 

79.  GROUNDS  OF  APPEAL. 

The  notice  of  appeal  shall  state  the  part  of  the  judg- 
ment appealed  from,  if  less  than  the  whole,  and  (in  lieu  of 
an  assignment  of  errors)  may  state  the  grounds  of  appeal. 
No  petition  of  appeal  shall  be  used.  The  grounds  of  appeal 
(if  not  stated  in  said  notice)  shall  be  served  and  filed  with- 
in thirty  days  after  filing  notice  of  appeal. 

It  is  probable  that  the  court  will  not  reverse  for  an  error  not 
objected  to  when  made  and  stated  as  a  ground  of  appeal.  State  vs. 
Lyon,  70  N.  J.  L.  735,  739.  State  vs.  Hummer,  73  N.  J.  L.  714; 
State  vs.  Herron,  77  N.  J.  L.  523.  See  note  to  Sects.  25,  27. 

80.  CROSS-APPEAL. 

Any  respondent  may  appeal  from  the  judgment  by  giving 
notice  of  cross-appeal,  which  shall  be  governed  by  the  rules 
applying  to  notice  of  appeals,  except  that  it  shall  be  served 
on  the  adverse  party  and  filed  not  more  than  fifteen  days 
after  service  of  the  notice  of  appeal. 

81.  STATEMENT  OF  THE  CASE. 

The  rules  Of  court  respecting  the  preparation  and  ser- 
vice of  the  statement  of  the  case  upon  writs  of  error  shall 
apply  to  appeals.  The  statement  of  the  case  shall  include 
the  notice  of  appeal,  the  record  of  the  case,  and  so  much 
of  the  evidence  taken  and  documents  filed  in  the  cause  as 
shall  be  necessary  to  present  the  questions  raised  upon  the 
appeal. 

See  Rule  71,  and  sec.  26  of  the  Act. 

The  Rules  of  Court.  This  refers  to  Rule  26  of  the  Supreme 
Court,  and  Rules  19  and  193  of  the  Court  of  Errors. 

The  Statement  of  the  Case  Shall  Include.  For  illustration,  see 
Form  314. 

82.  SECURITY  ON  APPEAL. 

The  service  and  filing  of  a  notice  of  appeal  shall  stay 
execution  on  the  judgment  appealed  from,  but  only  upon 
giving  security  in  the  manner  and  for  the  purposes  pre- 
scribed in  the  "Act  respecting  writs  of  error,"  Revision, 
approved  March  twenty-seventh,  one  thousand  eight  hun- 
dred and  seventy-four,  and  the  acts  amendatory  thereof  and 
supplementary  thereto. 


55  RULES.  Rule  83 

83.  Granting  to  a  party  a  rule  to  show  cause  why  a  new 
trial  shall  not  be  granted,  shall  be  a  bar  against  him  to  tak- 
ing or  prosecuting  an  appeal,  except  on  points  expressly 
reserved  in  said  rule.  A  rule  to  show  cause  why  a  new  trial 
should  not  be  granted  may,  in  the  discretion  of  the  court, 
be  special,  and  then  the  question  shall  be  heard  and  de- 
cided on  the  grounds  upon  which  the  rule  was  allowed. 

This  is  substituted  for  Section  214  of  the  Practice  Act  (1903) 
which  is  repealed.  See  cases  cited  under  that  Section  in  Mott's 
Practice  Act. 


56 


PART  IV. 
NOTE  ON  PLEADING. 


I.     Common  Law  Rules  of  Pleading,   which  are   Still  in 

Force. 

The  main  objects  of  the  new  rules  of  pleading  are  to  sift 
the  disputed,  issuable  facts  relevant  to  the  issue  from  those 
which  are  admitted,  and  to  apprize  each  party  of  those  is- 
suable facts,  which  his  opponent  expects  to  prove ;  or,  stated 
in  brief,  to  prevent  surprise  by  compelling  a  disclosure  of 
all  disputed,  issuable  facts,  which  the  parties  intend  to 
prove.* 

The  main  object  of  the  common  law  system  of  pleading 
was  to  produce  a  single  issue  upon  which  the  case  could  be 
finally  disposed  of.  This  is  no  longer  an  object  under  the 
new  rules.  They  do,  indeed,  require  that  a  single  cause  of 
action  be  stated  in  each  count,  and  a  single  defense  in  each 
statement  of  defense.  But  the  issues  upon  each  count,  or 
in  each  statement  of  defense,  may  be  as  numerous  as  the 
material  facts  which  are  stated  in  it.  For  the  denial  of  any 
material  fact  makes  an  issue.  (Rule  22). 

Great  care  was  necessary  also  in  common  law  pleading  to 
observe  a  number  of  rules  designed  to  secure  precision  (cer- 
tainty) of  statement,  and  these  were  often  highly  technical. 

An  examination  of  the  new  rules,  as  illustrated  in  the 
forms  attached  to  them,  will  show  that  the  common  law  rules 
designed  to  secure  certainty  are  much  modified.  Thus,  Rule 
17  requires  that  "All  pleadings  must  contain  a  plain  state- 
ment of  the  facts."  Turning  to  the  forms  (Nos.  4  to  20  in 
Schedule  B)  for  illustration,  we  find  that  the  degree  of  plain- 
ness or  certainty  that  is  required  is  only  that  of  reasonable 
precision  in  the  statement  of  facts — enough  to  enable  the 

*  For  the  meaning  of  the  terms  "issuable"  and  "probative,"  see  note 
to  Rule  17. 


57  COMMON  LAW  RULES.      Note  on  Pleading 

court  to  see  clearly  what  facts  constitute  the  cause  of  action 
and  the  defense.  Many  material  allegations  are  made  in 
those  forms  without  stating-  time  or  place,  whereas  such  an 
omission  at  common  law  would  have  been  an  objectionable 
defect. 

A  like  departure  occurs  from  the  common  law  rule  that 
quality,  quantity  and  value  must  be  stated,  in  actions  relating 
to  property.  The  forms  stated  in  Schedule  B,  in  many 
cases,  omit  all  reference  to  these  attributes,  though  they  are 
stated  whenever  they  are  material  to  the  controversy,  or 
contribute  to  clearness  of  statement. 

But  many  of  the  common  law  rules  are  still  in  force  and 
an  attempt  is  made  here  to  state  those  which  are  set  out  in 
Stephen's  Pleadings  and  which  are  not  superseded  by  the 
new  rules.  The  references  are  made,  for  the  most  part  to 
that  book,  but  the  same  rules  are  succintly  stated,  in  con- 
venient form  for  the  student  and  practitioner,  in  Martin's 
"Common  Law  Procedure,"  Sections  304-353.  It  is  prob- 
able that  these  rules  will  be  enforced  with  less  rigor  than 
in  the  former  practice. 

1.  A  traverse  (denial)  must  not  be  too  large  and  must 
not  be  taken  upon  an  immaterial  point.     Stephen's  PI.  241, 
246.    That  is,  denial  should  not  be  made  of  immaterial  state- 
ments.    Such  a  denial  does  not  make  an  issue  (Rule  22). 
Immaterial  facts  need  not  be  noticed  in  the  answering  plead- 
ing, for  only  material  facts  are  admitted  if  not*answerecl. 
Rule  20. 

And  the  traverse  must  not  be  too  narrow ;  as  when  it  fails 
to  answer  .fully  the  whole  substance  of  the  statement.  But 
this  common  law  rule  is  superseded  by  Rule  32,  which  ex- 
pressly prohibits,  that  sort  of  pleading. 

2.  The  common  law  rule  that  pleadings  must  not  be 
double,  (Steph.  PI.  251)  as  modified  and  used  in  our  former 
practice,  is  superseded  or  reaffirmed  by  Rules  36  and  39  re- 
quiring each  cause  of  action  and  each  defense  to  be  separately 
stated. 

The  rule  against  duplicity  was  not  violated  by  distinct 
answers  (in  one  plea)  applicable  to  such  parts  of  the  declara- 


Note  on  Pleading      COMMON  LAW  RULES.  58 

tion  as  relate  to  different  matters  of  claim  in  one  count. 
Steph.  PI.  256. 

Nor  by  distinct  answers  (in  one  plea)  to  different  parts 
of  the  declaration  relating  to  different  matters  of  claim; 
though  it  would  be  violated  if  the  several  answers  purported 
to  be  to  the  declaration  as  a  whole,  or  if  any  one  of  them  was 
a  complete  answer  to  the  whole  declaration.  Id. 

A  plea  was  double  if  it  traversed  and  also  confessed  and 
avoided.  Steph.  PI.  258.  But  according  to  form  17  in 
Schedule  B,  the  general  denial  with  matter  by  way  of  con- 
fession and  avoidance  may  be  included  in  one  "Defense." 

Immaterial  matter  could  not  make  a  pleading  double,  be- 
cause no  issue  could  be  taken  on  it.  Steph.  PI.  259. 

Nor  matter  pleaded  by  way  of  introduction  or  explana- 
tion (inducement).  Id.  262. 

Nor  distinct  matters  which  together  constitute  one  con- 
nected proposition  or  entire  point.  Id.  Thus,  to  an  action 
for  assault  and  imprisonment  the  plea  could  state  any  num- 
ber of  circumstances  showing  probable  cause,  though  any 
one  of  them  might  suffice  to  justify  the  arrest.  Id. 

Although  it  was  duplicity  to  make  one  denial  of  two  or 
morf  distinct  and  material  averments  in  the  opponent's  plead- 
ing, it  was  not  duplicity  to  deny  several  averments  which 
together  formed  a  single  point  or  proposition.  Id.  263. 

3.  Pleadings  must  specify  the  names  of  parties.    Id.  301. 
This  rule  has  not  been  relaxed,  except  in  the  circumstances 
stated  in  Section  27  of  the  Practice  Act  (1903).     A  viola- 
tion of  the  rule  was  ground  for  plea  in  abatement  and  is 
now  objectionable  under  Rule  38. 

4.  Pleadings  must  show  title.    Steph.  PI.  304.    That  is, 
when  property  or  damage  to  property  is  in  question,  the 
pleader  must  show  by  what  right  he  claims  the  property  or 
damages.    And  if  he  seeks  to  charge  defendant  with  liability 
in  respect  to  property,  he  must  also  show  the  defendant's 
right  or  title  to  it.     This  rule,  however,  was,  one  of  those 
designed  to  compel  certainty;  and,  like  the  rule  requiring 
averments  of  time,  place,  quantity,  etc.,  it  will  probably  be 
enforced  in  the  new  system  of  pleading  only  in  so  far  as 


59  COMMON  LAW  RULES.      Note  on  Pleading 

may  be  necessary  to  a  reasonable  degree  of  precision  in  the 
statements  of  the  pleadings. 

When  plaintiff  is  in  possession  and  the  right  of  possession 
has  been  violated,  it  is  sufficient,  as  against  a  wrong-doer,  to 
allege  the  fact  of  possession,  thus :  "The  plaintiff  was  law- 
fully possessed  of"  the  goods  or  lands ;  or  some  equal  equiv- 
alent phrase. 

Title  to  an  easement  should  be  alleged  by  alleging  posses- 
sion of  the  property  to  which  the  easement  is  attached. 

If  the  pleader  be  out  of  possession  but  is  either  the  owner 
or  has  the  right  of  immediate  possession,  he  may  state  his 
title  by  the  allegation  that,  "He  is  the  owner  of  the  goods," 
or,  "He  is  seized  in  fee  of  the  land"  or  by  any  equivalent 
phrase.  (See  Forms  178,  168).  But  if  the  pleadings  show 
that  the  fee  has  been  in  another,  the  pleader,  in  alleging 
title,  must  show  how  it  was  derived  from  the  other ;  namely, 
whether  by  lease,  conveyance,  or  the  like. 

But  if  the  pleader  has  only  a  particular  estate,  for  life 
or  for  years,  or  if  his  estate  in  fee  is  in  reversion  or  remain- 
der, he  must  state  his  title  according  to  the  facts.  In  such 
cases,  the  pleader  should  set  out : 

1 i )  The  quantity  of  the  estate  or  period  of  enjoyment : 
as,  for  so  many  years,  or  for  life,  or  in  fee  subject  to  a 
particular  estate. 

(2)  The  number  and  names  of  the  owners. 

(3)  The  commencement,  or  creation,  and  the  devolu- 
tion of  the  estate :   as,  by  will,  by  deed,  or  by  lease,  stating 
dates  and  names.     (See  Forms  i68a,  i68b). 

But  no  title  need  be  stated  when  -the  opposite  party  is 
estopped  from  denying  it.  Thus,  in  an  action  by  a  land- 
lord against  his  tenant,  the  plaintiff  need  not  state  his  title. 
But  if  the  action  be  by  the  executor,  or  heir,  or  assignee  of 
the  landlord,  the  lessor's  title  must  be  stated  in  order  to 
show  that  it  was  such  as  would  legally  pass  to  the  plaintiff. 

Pleading  authority  or  title  in  another.  Steph.  PI.  329. 
This  should  be  done  in  like  manner  as  in  stating  title  in  the 
pleader;  and  the  pleader's  authority  must  also  be  stated. 

In  justifying  under  a  writ  or  any  other  authority,  the 
pleader  must  state  it  and  show  that  he  has  substantially  pur- 


Note  on  Pleading      COMMON  LAW  RULES.  GO 

sued  it.  Under  judicial  process  it  is  not  necessary  to  state 
the  cause  of  action.  A  writ  of  execution  may  be  pleaded  by 
the  officer  executing  it  without  stating  the  judgment;  but 
the  judgment  and  the  writ  must  both  be  stated  as  authoriy 
by  a  pary  to  the  suit  or  a  stranger  (Steph.  PI.  331). 

In  justifying  under  a  judgment  and  process  of  a  foreign 
court,  its  jurisdiction  should  be  stated  and  also  that  the 
cause  of  action  was  within  it.  Steph.  PI.  332.  But  the 
jurisdiction  of  the  Supreme  Court  of  a  sister  state  is  ju- 
dicially noticed.  See  note  to  Form  228. 

5.  It  is  not  necessary  to  state  facts  of  which  the  court 
takes  judicial  notice.    Steplh.  PI.  346. 

6.  Or  matter  which  should  come  from  the  other  side. 
An  exception  to  this  rule  is  when  the  matter  is  essential  to 
the  prima  facie  case  of  the  pleader,  or  when  the  matter 
pleaded  is  by  way  of  estoppel.    Id.  353. 

7.  Or  circumstances  necessarily  implied.     If  the  pleader 
states  that  he  is  heir  to  A,  the  death  of  A  need  not  be  stated. 
Id. 

8.  Or  facts  which  the  law  will  presume.    Id.  354. 

9.  No  greater  particularity  is  required  than  the  nature 
of  the  thing  will  conveniently  permit.    Id.  367. 

10.  Less  particularity  is  required  when  the  facts  lie  more 
in  the  knowledge  of  the  opposite  party.    Id.  370. 

11.  Acts  valid  at  common  law,  but  regulated  by  statute 
as  to  the  mode  of  performance  may  be  pleaded  as  before  the 
statute.    Steph.  PI.  373. 

The  plaintiff  need  not  state  that  the  contract  he  sues  on 
is  in  writing,  though,  under  the  general  issue  (or  denial)  he 
must  prove  that  fact  at  the  trial,  Adams  vs.  Grady,  77  N.  J. 
L.  301.  The  opposing  party  may  (and  if  he  has  not  pleaded 
the  general  denial,  must)  state  that  it  was  not  in  writing. 

But  if  the  defense  is  founded  on  a  contract  which  the 
statute  of  frauds  requires  to  be  in  writing,  it  is  said  that  it 
must  be  so  stated  in  the  plea.  Steph.  PI.  376. 

12.  Of  two  different  meanings,   that  shall  be  adopted 
which  is  least  favorable  to  the  pleader. 


61  COMMON   I.A\\    RULES.      Note  on  Pleading 

13.  Pleadings  must  not  be  argumentative,  nor  by  way  of 
recital.    That  is,  they  must  state  facts  in  a  positive  form  and 
not  leave  them  to  be  inferred  from  statements  of  other  facts. 
Argumentative  admissions  and   denials  are  prohibited   by 
Rule  33,  but  the  common  law  rule  prohibits  that  form  of 
pleading  in  averments  as  well  as  in  admissions  and  denials. 
Steph.  PI.  384,  388. 

14.  There  must  be  no  departure  in  pleading.     That  is, 
the  pleader  must  not  shift  his  ground  from  that  which  he 
took  in  his  previous  pleading.    Steph.  PI.  410. 

15.  If  a  statute  on  contract  contain  a  general  clause  and 
afterivards  a  separate  and  distinct  clause  in  the  nature  of  an 
exception,  the  pleader  may  state  the  general  clause  without- 
noticing  the  other.    But  if  the  exception  be  incorporated  in 
the  general  clause,  the  pleader  must  state  both  clauses  and 
show  that  his  opponent  is  not  within  the  exception.   I  Chit. 
PL  223. 

And  when  the  exception  is  made  part  of  the  general  clause 
by  a  reference,  it  must  be  noticed  and  negatived.  Martin 
on  Com.  Law  Proc.,  Sec.  353. 

And  so  if  the  law  raises  an  exception  to  a  general  right. 
it  need  not  be  stated  in  pleading,  i  Chit.  PI.  224. 

The  defense  of  the  statute  of  limitations  could  not  be 
raised  by  demurrer.  Otherwise,  the  plaintiff  would  be  de- 
prived of  the  opportunity  to  show  that  his  case  was  within 
one  of  the  exceptions  mentioned  in  the  statute.  3  Chit.  PI. 
939  note  (f) ;  25  Cyc.  1396. 

Special  damages.  The  circumstances  showing  special 
damages  must  be  stated.  For  illustration,  see  Forms  in  in- 
dex under  "Special  Damages.5' 

Reference  may  be  conveniently  made  here  to  the  two  rules 
of  pleading  stated  in  the  Practice  Act  (1903),  namely,  that 
conditions  precedent  must  be  alleged  generally  by  the  pleader 
(Section  118)  ;  and  that,  in  actions  upon  bonds,  the  plain- 
tiff must  state  the  condition  and  assign  the  breaches  of  which 
he  complains  (Section  107). 


Note  on  Pleading         HOW    TO    ANSWER.  62 

II.      How  to   Answer. 

Conciseness  is  expressly  required  by  Rule  17  in  all  plead- 
ings. Get  rid  of  the  habit  of  using  two  or  three  words 
when  one  is  enough.  Say  "paid"  instead  of  "paid  and 
satisfied";  "executed  his  bond"  instead  of  "signed,  sealed 
and  delivered  his  bond" ;  "situate"  instead  of  "situate,  lying 
and  being."  Make  a  preliminary  draft  of  your  pleading  and 
then  go  over  it  striking  out  all  the  words  that  add  nothing  to 
the  meaning.  You  will  probably  be  surprised  at  the  number 
of  them. 

It  is  probable  that  little  difficulty  will  be  experienced  in 
drawing  complaints.  Practitioners  have  been  accustomed  to 
state  "the  facts  constituting  the  cause  of  action"  in  drawing 
special  counts  of  declarations.  Those  facts  must  be  stated 
in  the  complaint  plainly  and  concisely,  properly  divided  into 
paragraphs  (Rule  17),  must  contain  no  untrue  allegations 
made  without  reasonable  cause  (Rule  19),  and,  when  stated 
according  to  their  legal  effect,  they  must  be  so  stated  as 
fairly  to  apprize  the  defendant  of  the  facts  intended  to  be 
proved  (Rule  21),  and  must  otherwise  conform  to  the  rules 
of  pleading.  (  See  infra,  the  points  to  be  observed  in  answer- 
ing, p.  65.) 

The  preparation  of  the  answer,  while  requiring  more  care 
because  of  the  danger  of  making  unintended  admissions, 
should  not  be  more  difficult.  The  following  suggestions  may 
be  of  aid  to  the  pleader. 

The  title.  The  rules  and  forms  are  silent  as  to  whether  the 
names  of  all  the  parties  should  be  stated  in  the  title  of  the 
answer.  But  as  this  is  not  expressly  required  and  is  not  of 
apparent  use,  the  fair  inference  seems  to  be  that  it  is  not 
necessary. 

A  statement  of  the  venue  in  the  answer  is  required  in  ac- 
tions in  the  Supreme  Court  (See  Schedule  B,  Form  14). 

The  answer  must — 

(1)  Object  that  the  complaint  discloses  no  cause  or  ac- 
tion ;  or, 

(2)  Either  with  or  without  such  an  objection,  deny  the 
whole  or  an  essential  part  of  the  statements  in  the  complaint, 
that  is,  traverse  it;  or, 


63  HOW    TO    ANSWER.         Note  on  Pleading 

(3)  Admit  those  statements  and  state  other  facts  which 
constitute  a  defense ;  that  is,  plead  by  way  of  confession  and 
avoidance. 

(1)  Objection  that  the  complaint  discloses  no  cause  of 
action.     The  answer  may  contain  this  and  nothing  else, 
though  nothing  can  be  gained  and  much  may  be  lost  by  such, 
pleading.     In  such  case,  all  the  material  allegations  of  the 
complaint  will  be  admitted  and  the  fate  of  the  case  will  be 
staked  upon  the  decision  on  this  objection.     For  it  is  prob- 
able that  the  court,  in  such  case,  would  seldom  permit  de- 
fendant, after  an  adverse  decision,  to  amend  his  answer  by 
setting  up  a  defense  on  the  facts.    An  object  of  the  rules  is 
to  prevent  such  delay. 

If  the  answer  contain  denials,  or  a  defense  upon  the  facts, 
the  objection  that  the  complaint  discloses  no  cause  of  ac- 
tion should  be  stated  as  a  separate  defense,  and  this  is  true 
of  any  objection  in  point  of  law  (See  form  186). 

(2)  Traverse.    If  the  defense  consists  in  denial,  the  ob- 
jection for  failure  to  state  a  cause  of  action  may  also  be 
used  (Rule  26),  being  stated  as  a  separate  defense  (Rule 

39)- 

In  traversing,  every  allegation  which  you  wish  to  compel 
plaintiff  to  prove  must  be  denied,  or  the  answer  must  state 
that  defendant  has  no  knowledge  or  information  thereof 
sufficient  to  form  a  belief,  else  it  will  be  deemed  to  be  ad- 
mitted (Rule  20). 

The  general  denial  may  be  used,  either  as  a  separate  de- 
fense or  included  in  the  same  defense  (but  in  a  separate  para- 
graph), along  with  special  matter,  stated  in  other  para- 
graphs, in  confession  and  avoidance  (see  Schedule  B,  Form 
17).  But  the  general  denial  should  not  be  used  when  the 
real  defense  is  upon  some  other  point.  See  note  under  Rule 
40. 

Of  course,  a  denial  (or  a  denial  of  knowledge,  etc.)  of 
any  one  allegation  of  the  complaint  which  is  essential  to 
the  plaintiff's  case  will  suffice  as  a  defense,  if  plaintiff  fail 
to  prove  the  allegation  so  denied. 

But  the  general  denial  alone  will  seldom  be  a  safe  answer. 
It  will  be  better  to  accompany  it  with  statements  showing 


Note  on  Pleading         HOW    TO    ANSWER.  64 

the  real  point  of  the  intended  defense;  for  a  main  purpose 
of  the  rules  is  to  prevent  surprise.  If  there  is  no  intent  to 
surprise  the  plaintiff  there  can  be  no  good  reason  for  omit- 
ting a  statement  showing  the  precise  point  of  defense;  if 
there  is  such  an  intent,  the  court  ought  not  to  permit  it  to 
become  effective.  (See  Note  to  Rule  40).  For  illustra- 
tion see  .Form  232. 

Allegations  made  by  way  of  contradiction  or  explanation 
of  statements  in  the  complaint  need  not  be  stated  as  a  sep- 
arate defense  under  Rule  39.  It  is  only  new  matter,  by  way 
of  confession  and  avoidance,  which  must  be  so  stated.  Il- 
lustrations may  be  found  in  Form 

How  much  to  admit  and  how  much  to  deny  is  a  matter 
to  be  determined  by  the  pleader's  judgment,  aided  by  his 
experience.  To  deny  statements  which  he  knows  can  be 
proved  is  amateurish  and  crude.  It  also  raises  a  suspicion 
that  all  the  denials  may  be  false.  Moreover,  such  pleading 
involves  the  pleader  in  the  risk  of  being  charged  with  the 
cost  of  proving  the  statements  unreasonably  denied.  (Rule 
19).  But  do  not  admit  a  material  statement  unless  you 
know  it  to  be  true. 

(3)  Confession  and  avoidance.  Defenses  of  this  kind 
must  be  separately  stated  in  accordance  with  Rule  39.  They 
may  be  inconsistent  (Rule  24).  They  do  not  relieve  plain- 
tiff from  proof  of  statements  which  are  denied  in  other  de- 
fenses of  the  answer.  Shallcross  vs.  West  Jersey,  etc.,  75 
N.  J.  L.  395 ;  Livesey  vs.  Besson,  82  At.  509. 

In  drafting  an  answer  involving  the  statement  of  com- 
plicated facts,  a  convenient  method  may  be  to  consider  the 
complaint  as  if  it  were  a  bill  in  equity;  then  make  a  pre- 
liminary draft  of  the  answer  as  if  it  were  an  answer  to  such 
a  bill,  taking  care  to  make  no  inadvertent  admission,  either 
by  words  or  by  silence.  When  this  is  finished,  condense 
and  separate  the  several  denials,  allegations  and  defenses, 
in  a  second  draft,  in  accordance  with  these  requirements  of 
the  rules : 

See  that  the  answer — 

(i)     Is  "Plain  and  concise." 


65  ELECTION  OF  ACTIONS.     Note  on  Pleading 

(2)  States  only  the  facts  (issuable  facts)  on  which  you 
rely. 

(3)  Does  not  state  evidence  (probative  facts). 

(4)  Is  properly  divided  into  paragraphs  and  separate 
defenses.     Rules  17,  25,  39. 

(5)  Contains  no   untrue  allegations   or   denials   made 
without  reasonable  cause.     Rule  19. 

(6)  Does  not  admit,  by  words  or  silence,  any  statement 
of  the  complaint  which  may  not  be  true.     Rule  20. 

(7)  Denies  or  admits  the  substance  of  the  statements 
in  the  complaint  and  is  direct,  precise  and  otherwise  con- 
formable to  Rules  32  and  33. 

(8)  In  pleading  according  to  legal  effect,  fairly  apprizes 
the  plaintiff  of  the  facts  intended  to  be  proved  (Rule  21), 
and  states  specially  any  defense  which,  if  not  stated,  would 
be  likely  to  cause  surprise  or  raise  issues  not  arising  out  of 
the  complaint.    Rule  40. 

III.     Election  of  Actions. 

The  doctrine  of  election  between  actions  ex  delicto  and 
ex  contractu  is  probably  not  abolished  by  the  new  system  of 
pleading;  for  although  there  is  only  one  form  of  action,  it 
must,  of  necessity,  be  founded  upon  either  the  violation  of  a 
contract  or  upon  the  violation  of  a  duty  not  arising  out  of 
contract,  i.  e.,  upon  a  tort.  (But  see  Connecticut  cases  cited 
under  Rule  36.)  Reasons  for  making  such  an  election  may 
arise  in  the  following  cases: 

If  defendant  was  an  infant  when  the  cause  of  action  arose, 
he  may  in  certain  circumstances  be  liable  upon  the  ground 
of  tort  though  he  could  successfully  plead  his  infancy  to  an 
action  upon  the  contract : 

If  defendant  has  wrongfully  sold  plaintiff's  property  for 
more  than  its  value,  plaintiff  may  recover  the  full  proceeds 
of  sale  in  an  action  on  contract  for  money  had  and  received, 
though  he  could  recover  the  value  only  if  he  sued  upon 
the  tort : 

If  the  suit  be  on  contract,  no  execution  can  issue  against 
the  body,  except  for  fraud ;  but  such  an  execution  may  issue 


Note  on  Pleading     ELECTION  OF  ACTIONS.  66 

as,  of  course,  in  an  action  for  a  tort.  Kintzel  vs.  Olsen,  73 
Atl.  962: 

If  the  defendant  be  insolvent,  plaintiff  may  prefer  to 
replevy  the  goods  rather  than  sue  for  their  value  or  for  the 
proceeds  of  sale,  as  upon  contract. 

The  right  of  election  arises  most  frequently  in  the  fol- 
lowing classes  of  actions : 

1.  The  wrongful  taking  or  conversion  of  personal  prop- 
erty, including  theft  or  embezzlement  of  money : 

2.  The  wrongful  appropriation  of  income  from  lands. 

3.  Sale  of  goods  on  credit,  procured  by  fraud : 

4.  Frauds  and  deceits  generally,  by  which  personal  prop- 
erty is  obtained : 

5.  Cases  in  which  there  is  a  contract,  express  or  implied, 
and  also  a  general  duty  imposed  by  law  independent  of  the 
contract.     This  duty  is  imposed  upon  carriers,  innkeepers, 
men  engaged  in  professions  and  skilled  mechanics.     Pom- 
eroy  on  Code  Remedies,  Sections  no,  569,  et  seq;  Bliss  on 
Code  Pleadings,  Sec.   n,  et  seq.     And  see  cases  in  N.  J. 
Digest,  title,  "Election  of  Actions." 

When  the  plaintiff  makes  an  election  in  any  case  in  which 
he  is  entitled  to  such  an  option,  the  complaint  should  be 
so  drawn  as  to  show  whether  he  relies  upon  the  contract  or 
upon  the  tort.  Thus,  in  cases  of  wrongful  taking  or  con- 
version, when  the  plaintiff  elects  to  sue  upon  the  contract 
implied  in  law,  the  complaint  may  be  for  money  had  and 
received,  if  the  property  has  been  sold  by  the  defendant; 
and  the  plaintiff,  in  such  case,  will  be  entitled  to  recover  the 
actual  proceeds  of  sale.  (See  Form  23).  But  if  the  prop- 
erty be  still  in  possession  of  defendant,  the  action  under  the 
old  practice  could  have  been  for  goods  sold  by  plaintiff  to 
defendant  (Hirsch  vs.  Leatherbee  Lumber  Co.,  69  N.  J.  L. 
509),  and  that  is  still  the  practice  in  some  states  in  which 
the  code  is  used.  Bliss,  Code  Pleadings,  Sec.  155.  But 
the  obejction  to  such  a  form  of  complaint  is  that  it  states, 
not  the  facts,  but  the  fiction,  on  which  the  pleader  relies 
(Rule  17). 


67  ELECTION  OF  ACTIONS.     Note  on  Pleading 

The  better  method  would  be  for  the  pleader  to  state  the 
facts  truthfully  and  then  "directly  state  his  choice"  (Code 
Pleading,  sec.  155),  by  a  statement  such  as  this:  "Upon 
the  above  stated  facts,  plaintiff  elects  to  charge  defendant 
with  liability  upon  contract"  (or,  "upon  tort"). 

In  some  states  it  is  said  that  where  the  statements  in  the 
complaint  will  entitle  the  party  to  elect  between  two  reme- 
dies, the  "prayer"  (or  demand  for  relief)  may  determine  the 
character  of  the  action.  Ibid.  Carry  vs.  Gaynor,  21  Ohio 
St.  277;  Gillett  vs.  Treganza,  13  Wis.  472. 

Although  the  forms  in  this  book  are  not  drawn  to  illus- 
trate the  subject  of  election  of  actions,  yet  some  of  them 
may  aid  the  pleader  in  indicating  such  an  election.  Thus, 
Form  86  against  a  carrier  for  loss  of  goods  is  upon  con-* 
tract.  Form  88  might  be  considered  to  go  either  on  con- 
tract or  upon  tort,  that  is,  it  does  not  clearly  indicate  an 
election.  Forms  123  and  126,  against  a  bailee  for  misuse 
of  a  horse,  are  founded  on  the  tort,  for  a  violation  of  the 
bailee's  duty.  It  is  safer,  however,  in  using  such  forms  to 
add  a  paragraph  expressly  indicating  plaintiff's  choice. 

In  Connecticut  it  was  held  that  plaintiff  could  not  be  re- 
quired to  elect  between  contract  and  tort  when  one  count 
stated  a  cause  of  action  for  failure  to  accept  and  pay  for 
certain  machines,  which  defendant  had  ordered,  and  also 
stated,  in  the  same  count,  a  cause  of  action  in  tort  for  re- 
fusing to  allow  plaintiff  to  remove  them.  Craft  Refriger- 
ating Co.  vs.  Quinnipiac  Co.,  63  Conn.  561. 

In  such  case,  perhaps,  the  plaintiff  should  claim  in  the  al- 
ternative, as  in  Form  81.  See  Rule  37. 


68 


PART  V. 

SEVERAL   ACTS    RESPECTING    PRACTICE. 

TRANSFER   OF   CAUSES  ACT. 


An  Act  to  provide  for  the  transfer  of  causes  by  and  between 
the  Court  of  Chancery  and  the  Supreme  Court,  or  Cir- 
cuit Courts,  or  Courts  of  Common  Pleas. 
BE  IT  ENACTED  by  the  Senate  and  General  Assembly  of 

the  State  of  New  Jersey: 

1.  No  civil  cause  or  matter,  hereafter  pending  in  any 
court  mentioned  in  the  above  title,  which  has  not  juris- 
diction of  the  subject  matter,  shall  be  dismissed  for  that 
cause  only,  but  the  cause  or  matter  shall  be  transferred  with 
the  record  thereof  and  all  papers  filed  in  the  cause,  for  hear- 
ing and  determination  to  the  proper  court,  which  shall  there- 
upon proceed  therein,  as  if  the  cause  or  matter  had  been 
originally  commenced  in  that  court.    The  record  shall,  when 
necessary,  include  a  transcript  of  all  entries  and  proceedings 
in  the  cause. 

2.  Such  transfer  may  be  made  at  any  stage  of  the  pro- 
ceedings and  upon,  or  without,  application,  and  subject  to 
rules,  or  the  special  orders,  of  court. 

3.  Rules  for  such  transfers  from  the  Court  of  Chancery 
shall  be  made  by  that  court;  rules  for  such  transfers  from 
the  other  courts  shall  be  made  by  the  Supreme  Court. 

4.  This  act  may  be  referred  to  as  "The  Transfer  of 
Causes  Act  (1912)." 

Approved  March  28,  1912.     Chapt.  238. 


69  ACTS  RESPECTING  PRACTICE. 

AMENDMENT  TO  EJECTMENT  ACT. 

An  Act  to  amend,  and  to  repeal,  certain  parts  of  an  act  en- 
titled "An  act  concerning  the  action  of  ejectment"  (Re- 
vision  March  twenty-seventh,   one  thousand  eight  hun- 
dred and  seventy- four). 
BE  IT  ENACTED  by  the  Senate  and  General  Assembly  of 

the  State  of  New  Jersey: 

1.  Section  six  of  the  act  to  which  this  is  an  amendment 
be,  and  the  same  is,  hereby  amended  to  read  as  follows : 

6.  The  summons  shall  be  tested  on  the  day  it  is  issued, 
and  shall  be  in  like  form  as  other  writs  of  summons,  and 
shall  be  served  in  the  same  manner  as  the  writ  of  summons 
in  any  other  action;  and  if  such  service  can  not  be  made,', 
then  the  summons  shall  be  served  in  such  manner  as  the 
court,  or  a  judge  thereof*  shall  direct. 

2.  Sections  five,  ten  and  twelve  of  the  act  of  which  this 
is  an  amendment,  be  and  the  same  are  hereby  repealed. 

Approved  March  28,  1912.     Chapt.  263. 

AMENDMENT  TO  THE  PRACTICE  ACT    (1903). 

An  Act  to  amend  an  act  entitled  "An  act  to  regulate  the 
practice  of  courts  of  law  (Revision  of  1903),"  approved 
April  fourteenth,  one  thousand  nine  hundred  and  three. 
BE  IT  ENACTED  by  the  Senate  and  General  Assembly  of 

the  State  of  New  Jersey: 

1.  The  following  sections  of  an  act  entitled  "An  act  to 
regulate  the  practice  of  courts  of  law  (Revision  of  1903)," 
approved  April  fourteenth,  one  thousand  nine  hundred  and 
three,  be  and  the  same  are  amended  as  follows : 

2.  Section  fifty  is  amended  to  read  as  follows: 

50.  The  sheriff  or  officer  to  whom  any  process  is  di- 
rected or  delivered  for  service  shall  return  the  same  at  the 
time  and  place  therein  mentioned,  or,  if  no  time  or  place  be 
mentioned,  he  shall  forthwith  serve  and  return  the  same. 
In  default  of  so  doing,  he  may  be  amerced  by  the  court  in 
any  sum  not  exceeding  the  plaintiff's  debt  or  demand,  to 


ACTS  RESPECTING  PRACTICE.  70 

and  for  the  use  of  the  plaintiff.  The  return  of  the  officer 
serving  any  process  may,  in  the  same  action,  be  shown  to  be 
untrue  by  either  of  the  parties. 

3.  Section  fifty-two  is  amended  to  read  as  follows : 

52.  The  first  process  in  personal  actions  in  cases  where 
the  plaintiff  is  not  entitled  to  bail  shall  be  a  summons,  a 
copy  whereof  shall  be  served  on  the  defendant  in  person, 
or  left  at  his  usual  place  of  abode.  Said  service  shall  be 
made  forthwith  after  the  process  is  delivered  to  the  sheriff 
or  other  officer  for  service.  If  the  defendant  be  a  corpora- 
tion, the  summons  shall  be  served  as  provided  in  the  act 
entitled  "An  act  concerning  corporations  (Revision  of 
1896),"  except  that  the  service  shall  be  made  in  such  case 
forthwith  after  delivery  of  the  summons  to  the  sheriff.  If 
the  defendant  be  the  board  of  chosen  freeholders  of  any 
county  or  municipal  corporation,* or  a  township,  the  sum- 
mons shall  be  -served  on  the  clerk  or  presiding  officer  of  said 
board,  or  on  the  clerk  of  the  municipality  or  township,  or 
on  the  mayor  or  presiding  officer  of  the  governing  body 
forthwith  after  it  is  delivered  to  the  sheriff  or  other  officer 
for  service.  And  when  the  sheriff  or  other  officer  shall  re- 
turn the  same  "served,"  the  party  shall  be  considered  as  in 
court,  and  be  proceeded  against  accordingly;  provided,  if 
the  defendant  be  the  board  of  chosen  freeholders  of  a  coun- 
ty or  a  municipal  corporation  or  a  township,  the  sheriff  or 
other  officer  shall  in  his  return  state  on  whom  the  summons 
was  served. 

4.  Section  one  hundred  and  seventy-one  is  amended  to 
read  as  follows : 

171.  The  record  of  judgments  shall  be  signed  by  a  judge 
(or  the  clerk)  of  the  court  as  of  the  day  on  which  such 
judgments  were  entered,  and  judgments  signed  by  a  judge 
in  office,  though  not  in  office  at  the  time  of  entering  such 
judgments,  shall  be  as  good  and  effectual  in  law,  as  if  such 
judgments  had  been  signed  by  a  judge  who  was  in  office  at 
the  time  of  rendering  and  recording  the  same. 

Approved  March  28,  1912.    Chapt.  264. 


71 

AMENDMENT    TO   THE    MECHANIC'S   LIEN   ACT. 

An  Act  to  further  amend  an  act  entitled  "An  act  to  secure 
to  mechanics  and  others  payment  for  their  labor  and  ma- 
terials in  erecting  and  building"  (Revision  of  1898). 
BE  IT  ENACTED  by  the  Senate  and  General  Assembly  of 
the  State  of  New  Jersey:  t 

i.  Section  twenty-three  of  the  act  of  which  this  act  is 
an  amendment,  as  the  said  section  was  amended  by  chapter 
135  of  the  laws  of  1910,  be  and  the  same  is  hereby  further 
amended  to  read  as  follows : 

23.  When  a  claim  is  filed  agreeably  to  the  provisions 
of  this  act  upon  any  lien  created  thereby,  the  same  may 
be  enforced  by  a  suit  in  the  Circuit  Court  of  the  county 
where  such  building  is  situated,  or  in  any  district  court  of 
the  county  (provided  the  claim  does  not  exceed  five  hun- 
dred dollars  in  amount)  where  such  building  is  situated, 
and  when  the  suit  is  brought  in  a  district  court  the  practice 
shall  be  as  nearly  as  possible  the  same  as  now  provided,  or 
may  hereafter  be  provided,  by  law,  in  district  courts  in  ac- 
tions on  contract ;  which  suits  shall  be  commenced  by  sum- 
mons against  the  builder  and  the  owner  of  the  land  and 
building,  and  every  person  holding  a  mortgage  of  record 
against  the  property  affected  by  said  claim,  whose  mortgage 
would  be  cut  off  by  sale  under  said  claim,  in  the  following 
or  like  form : 

The  State  of  New  Jersey  To  (state  the  names  of  the  de- 
fendants). You,  A.  B.  builder,  and  C.  D.,  owner  (or  if  the 
owner  contracted  the  debt,  A.  B.,  builder  and  owner),  and 
E.  F.,  mortgagee  (if  there  be  a  mortgage  or  mortgages), 
are  summoned  to  answer  the  annexed  complaint  of  G.  H. 
(the  claimant)  in  an  action  at  law,  in  the  Circuit  Court  (or 

District  Court  of  the  city  of or,  of  the  district  of .  .  .  . , 

as  the  case  may  be)  in  and  for  the  county  of ,  in  which 

said  G.  H.  claims  a  building  lien  on  certain  buildings  and 
lands  of  said  C.  D.  described  in  said  complaint,  and  upon 
which  said  E.  F.  holds  a  mortgage  of  record.  And  take 
notice,  that  unless  you  file  your  answer  to  said  complaint 
with  the  clerk  of  said  court  at ,  within  twenty  days 


Amendment  MECHANIC'S  LIEN  ACT.  72 

after  service  upon  you  of  this  writ  and  the  annexed  com- 
plaint, the  plaintiff  may  proceed  in  the  suit  and  judgment 
may  be  entered  against  you. 

And  the  said  summons,  with  the  complaint  annexed,  shall 
be  directed  and  tested,  and  may  be  served  and  returned  in 
the  same  manner  as  other  writs  of  summons  in  the  court 
from  which  issued;  and  said  summons  and  complaint  may 
be  served  upon  the  defendants,  or  either  of  them,  in  any 
county  of  this  State,  by  the  sheriff  thereof  if  brought  in  the 
Circuit  Court,  or  by  a  constable  or  sergeant-at-arms  if  the 
suit  is  brought  in  any  district  court  of  any  county,  and  for 
this  purpose  the  same,  or  a  duplicate  thereof,  .may  be  is- 
sued to  such  sheriff,  or  constable,  or  sergeant-at-arms,  as 
the  case  may  be;  and  if  any  defendant  can  not  be  found  in 
this  State,  the  summons  and  complaint  may  be  served  upon 
him  by  affixing,  a  copy  thereof  upon  said  buildings,  and 
also  by  serving  a  copy  of  said  defendant  personally  or  by 
leaving  a  copy  of  the  same  at  his  residence,  which  shall  be 
deemed  actual  service,  or  in  case  said  defendant  resides  out 
of  this  State,  by  affixing  a  copy  on  said  building  and  send- 
ing a  copy  by  mail,  directed  to  him  at  the  post-office  address 
nearest  his  residence;  or  in  case  his  residence  is  not  known 
to  the  plaintiff,  then  by  affixing  a  copy  to  said  building  and 
by  inserting  a  notice  thereof  (to  be  prescribed  by  order  of 
the  court)  for  four  weeks,  once  in  each  week,  in  some  news- 
paper of  this  State  published  or  circulating  in  the  county 
where  such  building  is  situated,  either  of  which  shall  be 
legal  service;  and  when  an  affidavit  shall  be  made  and 
filed  of  the  facts  authorizing  and  constituting  any  such 
service  not  made  by  a  sheriff  or  officer,  the  suit  may  pro- 
ceed against  the  parties  so  served  as  if  such  summons  had 
been  returned  by  the  sheriff  or  other  officer. 

Approved  March  28,  1912.    Chapt.  265. 


73 

MARRIED  WOMEN'S  ACT  (1912). 

An  Act  respecting  actions  by  or  against  married  women. 

BE  IT  ENACTED  by  the  Senate  and  General  Assembly  of 
the  State  of  New  Jersey:  t 

i.  A  married  woman  may  sue,  or  be  sued,  without  join- 
ing her  husband,  in  any  case  whatsoever  in  which  he  would 
be  an  unnecessary  party  if  he  were  not  her  husband. 

Approved  March  28,  1912.    Chapt.  232. 


74 


PART  VI, 
,    FORMS 


i.     List  of  Forms  in  Schedule  B,  with  Correspond- 
ing Numbers  of  the  Forms  in  this  Book. 

Number  in 

Sched.  This 

B.  Book. 

Writ  of  summons    I  i 

Writ  of  replevin 2  3 

Commencement  of  complaint 3  4 

Complaint  on   book  account 4  18 

another   form   of   the   same • 5  19 

on  a  note  or  other  written  instrument  for 

payment  of  money 6  32 

another  form  for  the  same  against  maker 

and   endorser 7  33 

for  money  lent 8  20 

to  recover  salary 9  97 

for  rent 10  98 

by  purchaser  of  a  business  against  a  seller, 

for    damages.... n  99 

plaintiffs    in    alternative :     action    against 

common  carrier  for  loss  of  goods 12  86 

defendants  in  alternative :   action  on  a  con- 
tract of  sale 13  59 

Commencement  of  answer,  and  of  counter-claim....  14  183,266 

Answer  and  counter-claim 15  187 

general    denial 16  188 

general   denial  with  new  matter 17  189 

several  defenses   18  190 

Reply — general  denial 19  271 

partial  denial   20  272 

duress    21  273 

Postea    22  280 

Judgment    for   plaintiff 23  288 

for  defendant 24  289 

of  non-suit    25  291 

for   plaintiff    on    one    count,    and    for    de- 
fendant  on    another,    and    for   a    set-off, 

after  trial  by  the  court 26  290 

(NOTE:    There  is  no  Form  No..  27  in  Schedule  B.) 

Judgment   record    28  287 

Affidavit  for  summary  judgment 29  285 

Order  for  summary  judgment 30  284 


75  LIST  OF  FORMS  IN  SCHEDULE  B. 

Number  in 

Sched.  This 

B.  Book. 

Order  for  leave  to  defend  on  terms 31  286 

Preliminary  reference — commissioner's  summons 32  309 

commissioner's    order 33  310 

Judgment  without  pleadings 34  311 

Findings  of  the  court 35  312 

Statement  of  the  case  on  appeal 36  315 

Appeal    37  3*3 


76 


2.     A  List  of  the  Titles  of  all  Forms  in  this  Book, 
with  Their  Numbers. 

Number 
of  Form 

1  Writ  of  summons. 

2  on  mechanic's  liens. 

3  of  replevin. 

4  Commencement  and  conclusion  of  complaints. 

5  Title  of  complaint  on  mechanic's  lien. 

6  Conclusion  of  complaint. 

7  by  executor  or  administrator. 

8  against  an   executor    for    separate    claims    against 

him,  as  such,  and  against  him  personally,  when  the 
personal  claim  arose  with  reference  to  the  estate 
(Rule  14  (c)  ). 

9  by   husband   and  wife   for   injuries  to  wife  where 

husband  claims  damages  in  his  own  right. 

10  by  plaintiffs  having  separate  claims;  or  when  joint 

claims  are  joined  with  separate  claims. 

11  against  several  defendants  on  separate  claims. 

12  Title  and  conclusion  of  complaint  by  an  infant. 

13  by  an  informer,  in  an  action  qui  tarn. 

14  Averment  of  grant  of  letters  testamentary  or  of  administration. 

15  Averment  of  incorporation. 

16  Averment  of  conditions  precedent. 

17  Prayer  for  writ  of  mandamus. 

Complaints. 

18  On  a  book  account. 

19  Another  form  of  the  same. 

20  For  money  lent. 

21  For  money  paid  at  the  request  of  another. 

22  For  money  paid  by  mistake. 

23  For  money  received  for  plaintiff's  use. 

24  For  money  paid  to  defendant's  use. 

25  For  services,  quantum  meruit. 

26  for  commissions  of  broker. 

27  in  compiling  and  editing  a  book. 

28  by  an  architect. 

29  for  tuition. 

30  for  carpenter  work. 

31  advertising. 

32  on    a    note   or   other    written    instrument    for    the    payment    of 

money. 

33  Another  form  for  the  same,  against  maker  and  endorser. 

34  By  maker  of  accommodation  note  against  p-erson  accommodated. 


77  TITLES  OF  ALL  FORMS. 

Number 
of  Form 

35  Averment  of  excuse  for  non-presentment  of  note. 

36  Averment  of  waiver  of  notice  of  non-payment  of  note. 

37  The  same,  where  demand  and  notice  were  both  waived. 

38  On  a  note ;  by  a  surviving  payee  and  the  administrator  of  a 

deceased  payee. 

39  On  a  joint  note,   against   one   of  the   makers   and  against  the 

executor  of  the  other. 

40  Against   an   executor   upon    separate  notes ;   one   made  by   tes- 

tator, and  the  other  by  the  executor,  for  the  benefit  of  the 
estate. 

41  On  a  bill  of  exchange ;  drawer  against  acceptor. 

42  payee  against  acceptor. 

43  first  endorsee  against  acceptor. 

44  subsequent  endorsee  against  acceptor. 

45  directed  by  drawer  to  himself  and  ac- 

cepted by  him. 

46  payee  against  drawer  for  non-acceptance. 

47  first  endorsee  against  first  endorser. 

48  endorsee   against   drawer,   acceptor   and 

endorser. 

49  On  a  bank  check :     payee  against  drawer. 

50  endorsee  against  drawer  and  endorser. 

51  against  a  bank  on  a  certified  check. 

52  On  a  bond  conditioned  to  pay  money. 

53  other  than  for  the  payment  of  money. 

54  another  form,  not  annexing  a  copy  of  the  bond. 

55  for  the  fidelity  of  a  clerk. 

56  arbitration  bond. 

57  For  deficiency  upon  sale  of  land,  on  foreclosure  of  mortgage. 

58  On  a  foreign  judgment. 

59  Defendants  in  alternative :    action  on  a  contract  of  sale  of  stock. 

60  Sale :    for  the  price  of  goods  delivered  to  a  third  party  at  de- 

fendant's request. 

61  for  not  delivering  goods  sold. 

62  by  vendee  of  chattels  on  failure  of  title. 

63  on  warranty  of  a  horse :    special  damages. 

64  for  goods  made  to  order,  by  sample,  and  not  accepted. 

65  On  covenant  of  warranty  in  a  conveyance. 

66  of  seizin. 

67  against  encumbrances. 

68  for    quiet    enjoyment;    against    landlord:     special 

damages. 

69  against  tenant  for  not  keeping  premises  in  repair. 

70  Against  executor  of  lessee  for  rent  due  before  his  death. 

71  landlord   for  breach  of  covenant  to  keep  premises  in 

repair :     special  damages. 

72  On  contract  to  convey  land. 


TITLES  OF  ALL  FORMS.  78 

Number 
of  Form 

73  On  contract  to  purchase  land. 

74  For  use  and  occupation. 

75  For  services  of  an  attorney  on  an  implied  contract  to  pay. 

76  Against  an  attorney  for  not  collecting  a  note. 

77  for  neglecting  to  file  an  answer. 

78  negligence  in  examining  title. 

79  for  money  collected. 

80  Against  an  agent  for  selling  contrary  to  orders. 

81  Against  del  credere  agent  on  his  'liability  as  such,  and,  in  the 

alternative,  for  neglect. 

82  Against  sureties  for  payment  of  rent. 

83  Against  principal  and  sureties  on  contract  for  services. 

84  On  an  agreement  to  answer  for  the  price  of  goods  sold  to  a 

third  person. 

85  By  surety  (on  a  lease)  against  his  principal. 

86  Plaintiffs    in    alternative :     action    against   common    carrier    for 

loss  of  goods. 

87  Against  a  carrier  for  not  delivering  in  a  reasonable  time. 

88  for  loss  of  baggage. 

89  for  losing  goods. 

90  Against  an  inn  keeper  for  loss  of  goods. 

91  On  a  warehouse  receipt :  by  endorsee  thereof. 

92  On  a  fire  insurance  policy. 

93  On  a  life  insurance  policy:  by  executor. 
04  Against  a  builder  for  defective  work. 

95  for   not   completing   his    work:    special    dam- 

age for  loss  of  rent. 

96  By   a   builder,   on    a   written   contract   modified   by   parol   with 

claim  for  extra  work. 

97  For  salary. 

98  For  rent. 

99  By  purchaser  of  a  business  against    a    seller    for    breach    of 

covenant  not  to  compete. 

100  Against  a  note  broker  for  proceeds  of  note  discounted. 

101  Against  an  auctioneer  for  not  accounting. 

102  On  an  award. 

103  Quantum   ineruit  for  the  hire  of    a    piano,    with    damages    for 

converting  it. 

104  On    special   contract    for   hire   of   furniture,   with    damages   for 

injury  to  it. 

105  For  breach  of  promise  of  marriage. 

106  For  demurrage,  and  damages  in  the  nature  of  demurrage. 

107  On  a  guarantee  of  a  precedent  debt. 

108  On  a  promise  made  to  a  third  person  to  pay  money  to  plaintiff; 

making  the  former  a  defendant. 

109  By  an  advertising  agent  for  services  and  disbursements, 
no    By  employee  for  wrongful  dismissal  from  service. 


79  TITLES  OF  ALL  FORMS. 

Number 
of  Form 

in     For  board  and  lodging. 

112  For  contribution. 

113  Against  a  husband   for  necessaries  supplied  to  his   wife  with- 

out his  request. 

114  Mechanic's    lien:     against   owner:     no   contract   being  filed,    or 

when  the  work  or  materials  are  not  covered 
by   the   contract :   prices   agreed   on. 

115  the  same,  when  there  was  no  express  promise, 

or  when  the  prices  were  not  agreed  on. 

116  when  a  mortgagee  is  made  a  party  defendant. 

117  against  builder  (contractor)  and  owner:    con- 

tract not  filed. 

118  by  contractor  against  owner. 

119  against  owner,  on  a  stop-notice. 

120  on    stop-notice,    where    owner    has    paid    con- 

tractor in  advance  of  the  terms  of  the  con- 
tract. 

121  Cross-complaint  between  co-defendants  on  an  agreement  to  in- 

demnify. 

122  against  bailee  for  misuse  of  property  lent. 

123  Negligence :  against  bailee  without  reward. 

124  against  bailee  for  injury  to  goods  hired. 

125  against  bailee  carrying  goods  for  hire. 

126  for  driving  a  horse  immoderately. 

127  against  a   railroad  company  for  personal  injuries, 

special  damages. 

128  against  a  physician  for  unskillful  treatment:  special 

damages. 

129  against    a    suregon    for    an    unskillful    operation : 

special  damages. 

130  against  a  watch-maker. 

131  accident  caused  by  obstructing  street. 

132  defendant's    servant   allowed   a   weight    to    fall   on 

plaintiff. 

133  against  warehousemen  for  loss  of  goods. 

134  against  warehouseman  for  injury  to  goods. 

135  against  a  wharfinger. 

136  death  caused  by  electric  wire. 

137  accident  at  railroad  crossing. 

138  trolley   accident. 

139  collision  of  wagons. 

140  leaving  open  a  cellar  area  adjoining  street. 

141  against    telegraph    company    for    not    transmitting 

message. 
See  Forms  77,  78,  81,  87,  88,  236. 

142  For  assault. 

143  For  assault  and  battery,  special  damages. 

144  Trespass:    against    a    railroad    company    for    unlawful    ejection 

from  train. 


TITLES  OF  ALL  FORMS.  80 

Number 
of  Form 

145  against    sheriff    and    execution    creditor    for    illegal 

seizure. 

146  to  goods. 

147  to  goods :  exemplary  damages. 

148  to  goods  and  person :  exemplary  damages. 

149  for  taking  and  riding  plaintiff's  horse. 

150  on  lands. 

151  on  land,  with  cattle. 

152  on  lands  and  to  goods. 

153  Malicious  prosecution,  special  damages. 

154  For  libel. 

155  with  special  damages. 

156  Slander. 

157  with  special  damages. 

158  another  form  for  the  same. 

159  Criminal  conversation. 

160  Seduction. 

161  Conversion  of  goods. 

162  another  form  for  the  same. 

163  by  an  executor. 

164  Fraud :  for  conspiring  to  cheat. 

165  Deceit :  fraudulently  concealing  the  insolvency  of  a  third  person. 

166  fraud  in  sale  of  horses. 

167  fraud  in  the  sale  of  a  business. 

168  Ejectment:  mesne  profits:  injury  to  the  property. 
i68a  devisee  of  land  against  heir. 

i68b  grantee   against  grantor  who   refuses   to   surrender 

possession. 

169  Against  a  sheriff  for  an  escape. 

170  Nuisance :  maintaining  a  slaughter  house. 

171  fouling  a  stream. 

172  Waste :  injury  to  reversion. 

173  For  diverting  water  from  a  mill. 

174  Easement :  obstruction  of  a  private  way. 

175  obstruction  of  public  way. 

176  Mischievous  animals :  knowingly  keeping  a  fierce  dog. 

177  Wrongful  distress. 

178  Replevin :   against  pawn  broker  for  return  of  pledge ;  alterna- 

tively, for  damages  for  its  conversion. 

179  plaintiff  claiming  a  general  property  in  the  goods. 

180  plaintiff  claiming  a  special  property  in  the  goods. 

181  for  unlawful  detention,  when  the  taking  was  lawful. 

Motion  to  Strike  Out. 

182  Notice  of  motion  to  strike  out  under  rule  26. 


81  TITLES  OF  ALL  FORMS. 


Answers. 

Number 
of  Form 

183  Commencement  of  answer. 

184  separate  answer  by  one  of  several  defendants 

who  is  sued  by  the  wrong  name. 

185  answer  by  infant  defendant. 

186  Objections  in  point  of  law    (under  rule  26). 

187  Answer  with  counter-claim. 

188  General  denial. 

189  with  new  matter. 

190  Several  defenses. 

191  Unauthorized  acceptance  in  name  of  corporation,  and  want  of 

consideration. 

192  Acceptance  was  for  plaintiff's  accommodation. 

193  The  note  was  for  goods  sold  by  fraud. 

194  was  for  accommodation  and  was  mis-applied. 

195  was  given  to  compound  a  crime. 

196  was  for  illegal  sale  of  liquor. 

197  'Non-presentment  of  note  at  place  of  payment. 

198  Accord  and  satisfaction. 

199  Defendant  endorsed  as  agent,  where  the  complaint  stated  the 

contract  untruly  in  this  respect. 

200  Alteration  of  instrument. 

201  Invalidity  of  an  award. 

202  Bailment :  denial  of  plaintiff's  title. 

203  To  a  complaint  for  breach  of  promise;  that  plaintiff  was  un- 

chaste. 

204  Payment  by  note. 

205  To    an   action    against    carrier    for    injury   to   goods:    that   the 

damage  was  by  plaintiff's  fault. 

206  Compromise. 

207  Ultra  vires,  by  a  corporation. 

208  note   taken   by   a   corporation   outside   its   powers. 

209  Married  women's  act. 

210  Denial  that  credit  has  expired. 

211  Discharge  in   bankruptcy. 

212  Duress  by  imprisonment. 

213  Duress  by  threats. 

214  The  delivery  was  in  escrow. 

215  Partial  failure  of  consideration. 

216  The  debt  was  incurred  by  gambling. 

217  Infancy. 

218  Insanity. 

219  To   an   action   on    an   insurance   policy:   that   plaintiff   gave   a 

fradulent  account  of  loss. 

220  transfer  of  the  interest  of  the  insured. 


TITLES  OF  ALL  FORMS.  82 

Number 
of  Form 

221  To  an  action  on  an  insurance  policy :     extra  hazardous  risk. 

222  life  insurance :  misrepresentation. 

223  failure  to   give   account   of   loss   within   limited   time. 

224  Invalidity  of  a  foreign  judgment. 

225  Invalidity  of  domestic  judgment  against  a  non-resident. 

226  To  an  action  on  judgment:   reversal  of  the  judgment. 

227  Former  judgment  for  plaintiff. 

228  for  defendant. 

229  Lien  for  storage. 

230  Statute  of  limitations. 

231  Novation,  by  substitution  of  a  new  creditor. 

232  Denial    of   part   of   indebtedness,    of   part   of    delivery,    and   of 

part  of  price. 

233  Denying  the  promise   as   to   part  and  pleading  payment   as  to 

residue. 

234  Payment  of  all  the  goods  were  worth. 

235  Defendant  gave  his  note  for  acceptance  which  is  not  due. 

236  Part    payment;    part    failure    of    consideration;    counter-claim 

for  negligence  and  trespass. 

237  That  plaintiff  agreed  to  accept  a  note  of  a  third  person  in  part, 

payment. 

238  Denial   of  plaintiff's   general   allegation   of  performance. 

239  Recision   of  contract. 

240  Plaintiff's  breach  of  contract  as  to  place  of  delivery. 

241  as  to  quality  or  kind. 

242  By  a  surety,  alleging  an  extension  of  time. 

243  alleging  a  change  in  the  terms  of  the  contract. 

244  Tender. 

245  Denial  of  part  and  tender  of  residue. 

246  Tender,  when  cause  of  action  is  denied. 

247  False  warranty :  note  was  given  for  price  of  sheep :  they  were 

diseased :  counter-claim. 

248  Mechanic's  Lien :  denial  of  lien  by  owner  or  mortgagee. 

249  claim  of  prior  lien  by  mortgagee. 

250  Defense  of  son  assault  demesne. 

251  To  an  action  for  assault;  defense  of  molliter  manus  imposuit. 

252  To  an  action   for  assault  and  battery :   self  defense :   counter- 

claim. 

253  Probable  cause  to  an  action  for  malicious  prosecution. 

254  By  a  railroad  company,  to  an  action  by  a  passenger. 

255  Inconsistent  defenses :  action  of  trespass  on  land. 

256  By  sheriff;  to  a  complaint  for  an  illegal  seizure. 

257  Privileged  communication,  in  an  action  for  slander. 

258  License,  in  an  action  for  trespass  to  personal  property. 

259  Ejectment:    license. 

260  set-off  of  the  value  of  permanent  improvements. 


83  TITLES  OF  ALL  FORMS. 

Number 
of  Form 

261  Replevin :  denial  of  detention,  and  disclaimer. 

262  general  denial  without  disclaimer :    counter-claim  for 

return  of  goods  and  damages. 

263  answer  in   the   nature   of   an   avowry :    counter-claim 

for  return  of  goods  and  damages. 

264  Affidavit  of  merits. 

265  notice   thereof   to   be   endorsed  on  complaint. 

Counter-Claim  and  Set-Off. 

266  Commencement  of  counter-claim. 

267  Counter-claim  against  carrier  for  negligence. 

268  Set-off :  plaintiff  is  indebted  to  defendant. 

269  plaintiff  received  money  for  use  of  defendant. 

270  Answer  to  counter-claim :  general  denial  with  new  matter. 

Replies. 

271  Reply :  general  denial. 

272  partial  denial. 

273  duress,  avoiding  a  release. 

274  and  answer  to  counter-claim :  son  assault  demesne. 

275  Defendant's  reply  to  above  answer  to  counter-claim. 

276  Reply :  revocation  of  license. 

277  to  answer  of   married   women's   act :   contract  made   in 

another  state :  foreign  statute. 
2/8     Rejoinder  to  reply:  duress. 

279  Supplemental  pleadings. 

Postea  and  Judgments. 

280  Postea. 

Rules  for  Judgments. 

281  Rule  for  judgment,  interlocutory  or  final,  by  default,  against 

defendant. 

282  for  judgment  for  plaintiff  on  verdict. 

283  for  judgment  against  defendant  for  failure  to  comply  with 

conditions  of  leave  to  defend. 

284  Order  for  summary  judgment. 

285  Affidavit  for  summary  judgment. 

286  Order  for  leave  to  defend  on  terms. 

Judgments. 

287  Judgment  record. 

288  Judgment  for  plaintiff  on  verdict. 
jSu  for  defendant  on  verdict. 


TITLES  OF  ALL  FORMS.  84 

Number 
of  Form 

290  for  plaintiff  on  one  count ;  for  defendant  on  another, 

and  for  a  set-off;  after  trial  by  the  court. 

291  of  non-suit :  plaintiff  not  appearing  at  trial. 

292  of  non-suit  for  failure  of  proof. 

293  of  non-pros  for  failure  to  file  reply,  or  non-suit  for 

failure  to  notice  for  trial. 

294  by  default  against  defendant  for  failure  to  plead. 

295  against  defendant  who  failed  to  appear  at  trial. 

296  Summary  judgment  after  answer  struck  out. 

297  Judgment  against  defendant  on  his  failure  to  comply  with  con- 

ditions of  leave  to  defend. 

298  without  pleadings. 

299  for  one  of  two  plaintiffs  claiming  in  the  alternative 

against  defendant. 

300  The  same,  when  the  trial  court  reserved  a  question  of  law  and 

submitted  the  case  to  the  jury  upon  alternative  propositions 
of  law. 

301  Judgment  against  one  of  two  defendants  sued  in  the  alternative. 

302  (against   surety   and  principal),   allowing  surety   the 

benefit  of  the  judgment. 

3O2a  On  a  cross-complaint  between  co-defendants  on  an  agreement 

to  indemnify. 

303  for  defendant  on  motion  to  strike  out  for 

failure  to  state  a  cause  of  action. 

304  for  plaintiff  against  one  of  two  defend- 

ants after  a  separate  trial. 

305  for    one    of    two    defendants    after    sep- 

arate trials  against  each,  and  a  previous 
judgment  against  the  other. 

306  against  an  executor  of  a  deceased  co-con- 

tractor,  and  against  the  surviving  co- 
contractor. 

307  against  an  executor,  as  such,  and  against 

him  personally. 

308  for  a  writ  of  mandamus. 

Other  Forms. 

309  Preliminary  reference — commissioner's  summons. 

310  commissioner's  order. 

311  Statement  of  the  case,  for  judgment  without  pleadings. 

312  Findings  of  the  court. 

313  Notice  of  appeal. 

314  Grounds  of  appeal. 

315  Statement  of  the  case  on  appeal. 


85 


FORMS 
UNDER  THE  PRACTICE  ACT  (1912) 


NOTE:  The  following  forms  include  all  those  in  "Schedule 
B,"  annexed  to  the  Rules,  some  of  which  are  here  slightly 
modified. 

1.     Writ  of  Summons. 

(FROM  SCHEDULE  B.) 
The  State  of  Nezv  Jersey  to  John  Doe. 

You  are  summoned  to  answer  the  annexed  com- 
(L.  s.)     plaint  of  Richard  Roe  in  an  action  at  law  in  the 
Supreme  Court.     And  take  notice  that  unless  you 
file  your  answer  to  said  complaint  with  the  Clerk  of  the  Su- 
preme Court,  at  Trenton,  within  twenty  days  after  service  upon 
you  of  this  writ  and  the  annexed  complaint,  the  plaintiff  may 
proceed  in  the  suit  and  judgment  may  be  entered  against  you. 
Witness,  William  S.  Gummere,  Chief  Justice  of  the  Supreme 

Court,  at  Trenton,  this day  of 

nineteen  hundred  and 

WM.  RIKER,  JR., 

Attorney.  Clerk. 

NOTE:  All  writs  issuing  out  of  the  Circuit  Court  or  Court 
of  Common  Picas  should  be  attested  in  the  name  of  a  Judge 
of  the  Court  from  which  the  zvrit  issues. 


X 


Form  2  WRITS.  86 

2.  Writ  of  Summons  on  Mechanics'  Lien. 

The  State  of  New  Jersey  To  (state  the  names  of 
(L.  s.)     the  defendants).     You,  A.  B.,  builder  and  C.  D., 
owner  (or  if  the  owner  contracted  the  debt,  A.  B., 
builder  and  owner),   and   E.   F.,   mortgagee    (/'/   there  be   a 
mortgage  or   mortgages),  are  summoned  to  answer  the  an- 
nexed complaint  of  G.  H.  (the  claimant)  in  an  action  at  law. 

in  the  Circuit  Court  (or,  District  Court  of  the  city  of 

or,  of  the  district  of ,  as  the  case  may  be)  in  and  for 

the  county  of ,  in  which  said  G.  H.  claims  a  building 

lien  on  certain  buildings  and  lands  of  said  C.  D.  described  in 
said  complaint,  and  upon  which  said  E.  F.  holds  a  mortgage 
of  record.  And  take  notice,  that  unless  you  file  your  answer 

to  said  complaint  with  the  clerk  of  the  said  court  at 

•within  twenty  days  after  service  upon  you  of  this  writ  and  the 
annexed  complaint,  the  plaintiff  may  proceed  in  the  suit  and 
judgment  may  be  entered  against  you. 
Witness,  etc. 

The  Summons  in  ejectment  must  now  be  in  the  same  form 
as  No.  i  aboz'c.  Laws  of  1912,  Chapt.  263. 

3.  Writ  of  Replevin. 

(FROM  SCHEDULE  B.) 
THE    STATE    OF    NEW    JERSEY,    to    the    Sheriff 

(L.  s.)      (or one  of  the  coroners)    of  the 

County  of 

GREETING:  We  command  you  that  if  John  Doe  shall  make 
you  secure,  you  cause  to  be  taken  and  delivered  to  him,  one 
bay  horse  (describe  sufficiently  all  the  goods  in  question) 
which  Richard  Roe  took  and  unjustly  detains  as  is  said;  and 
that  you  summon  the  said  Richard  Roe  to  answer  the  an- 
nexed complaint  of  John  Doe  in  an  action  at  law  in  the  Supreme 
Court.  And  that  you  notify  him  that  'unless  he  files  his  answer 
to  said  complaint  with  the  Clerk  of  the  Supreme  Court,  at 
Trenton,  within  twenty  days  after  service  upon  him  of  this 
writ  and  the  annexed  complaint,  the  plaintiff  may  proceed 
in  the  suit  and  judgment  may  be  entered  against  him. 

(Attestation  clause  as  in  No.  i.) 


87 


COMPLAINTS. 


Form  5 


Commencement  and  Conclusion  of  Complaint. 
(FROM  SCHEDULE  B.  MODIFIED.) 
Supreme  Court  of  New  Jersey.          > 


Hudson  County. 


John  Doe  and  James  Fen 


Plaintiffs, 


vs. 


Complaint. 


Richard  Roe,  and  George  Jones,  Execu- 
tor of  the  Will  of  Thomas  Brown,  and 
the  Dale  Company,  a  corporation, 

Defendants. 

(State  in  the  title  the  names  of  all  the  parties  and  the  charac- 
ter in  ivhich  they  appear.) 

Plaintiffs  (state  names  and  residences)  say  that  (to  be  filled 
up  in  accordance  with  the  following  forms)  : 
The  plaintiffs  demand  (as  in  the  following  forms)  : 

(Signed) 


Attorney  for  Plaintiff. 

9 

NOTE:  The  venue  is  stated  in  the  caption  only.  It  isould 
appear  to  be  unnecessary  to  state  it  at  all  in  actions  in  the 
Circuit  Courts,  on  Common  Pleas,  because  the  name  of  those 
courts,  in  the  caption,  sufficiently  indicates  the  venue. 

5.     Title  of  Complaint  on  Mechanic's  Lien. 

Hudson  County  Circuit  Court. 

John  Doe, 

Plaintiff, 

On  Mechanic's 
Richard  Roe,  Owner,  Tjen 

Thomas  Brown,  Builder,  ~ 

Complaint. 

James  Fen,  Mortgagee, 

Defendants. 


Form  6  COMPLAINTS.  88 

6.  Conclusion  of  Complaint. 

When  the  damages  arc  a  sum  certain,  hnoicn  to  the  pleader, 

•with  interest:  Plaintiff  demands,  as  damages,  $ 

with  interest  from 

When  the  damages  are  unliquidated  or  arc  unknown  to  the 
pleader:  Plaintiff  demands  $ damages. 

When  damages  arc  claimed  on  several  counts: 

Plaintiff  demands: 

1.  On  the  first  count  $500  damages, 

2.  On  the  second  count  $1,000  damages,  etc. 

7.  Conclusion  of  Complaint  by  Executor  or  Administrator. 

And  the  plaintiff,  as  executor  (or,  as  administrator)  as 
aforesaid  demands,  etc. 

8.  Conclusion  of  a  Complaint  Against  an  Executor,  for 
Separate  Claims  Against  Him,  as  such,  and  Againsti 
Him  Personally,  When  the  Personal  Claim  Arose  With 
Reference  to  the  Estate.     (Rule  14  (c). 

Plaintiff  demands  as  damages  upon  the  first  count  $ 

with   interest   from against   the   defendant 

as  such  executor   (or,  administrator)  ;  and  upon  the  second 

count,  $ with  interest  from , 

against  the  defendant  personally. 

9.  Conclusion  of  Complaint  by  Husband  and  Wife  for  In- 
juries to  Wife  Where   Husband  Claims   Damages  in 
His  Own  Right. 

The  plaintiff,  Mary  Doe,  claims  $ damages  on  the 

first  count;  and  the  plaintiff,  John  Doe,  claims  $ 

on  the  second  count. 

10.  Conclusion  of  Complaint  by  Plaintiffs  Having  Separate 
Claims;  or  When  Joint  Claims  are  Joined  With  Sep- 
parate  Claims. 

(The  conclusion  is  similar  to  that  contained  in  the  preced- 
ing form.} 


89  COMPLAINTS.  Form  14 

11.  Conclusion  of  Complaint  Against  Several  Defendants 
on  Separate  Claims. 

Plaintiff  demands  of  the  defendant  John  Doe,  upon  the 
first  count  $ damages ;  and  demands  of  the  de- 
fendant Richard  Roe,  upon  the  second  count  $ 

damages. 

12.  Title  and  Conclusion,  of  Complaint  by  an  Infant. 

Court. 

John  Doe,  by  A.  B.,  his  next  friend,  \ 

Plaintiff,    f 

>   Complaint. 
vs. 

Richard  Roe,  ) 

(Conclude  thus)  :    The  plaintiff  demands,  etc. 
AGAINST  AN  INFANT :    The  title  and  conclusions  are  in 
the  ordinary  form  without  mentioning  his  infancy. 

13.  Title  and  Conclusion  by  an  Informer  in  an  Action  Qui 
Tarn. 

.  .Court. 


John  Doe,  who  sues  as  well  for 

as  for  himself, 

Plaintiff, 


vs. 


Richard  Roe, 

Defendant. 


Complaint. 


(Conclude    thus)  :      The    plaintiff    demands,    as    well    for 
,  as  for  himself,  etc. 


14.  Averment  of  Grant  of  Letters  Testamentary  or  of  Ad- 
ministration. 

The  said  John  Doe  died  on  or  about  May  loth,  1912,  leav- 
ing a  will  (or,  intestate). 

On  May  25th,  1912,  said  will  was  admitted  to  probate  by 

the  Surrogate  of county  and  letters  teste- 

mentary  issued  thereon  by  said  Surrogate  to  plaintiff  (or, 
defendant),  and  were  accepted  by  him. 


Form  15  COMPLAINTS.  90 

OR 

On  May  25th,  1912,  letters  of  administration  were  granted 
upon  the  estate  of  said  John  Doe,  by  the  Surrogate  of 

County  to  plaintiff  (or,  defendant)  and 

were  accepted  by  him. 

15.  Averment  of  Incorporation. 

In  actions  by  or  against  corporations,  the  fact  of  incorpora- 
tion should  be  alleged  thus: 

At  the  times  herein  stated  plaintiff  (or,  defendant)  was 
and  still  is  a  corporation  (of  the  state  of ). 

NOTE:  The  state  in  which  the  company  is  incorporated 
should  be  averred  when  that  fact  is  material;  when  not  ma- 
terial it  need  not  be  stated  except  in  the  statement  of  the  plain- 
tiff's or  defendant's  residence  in  the  commencement. 

16.  Averment  of  Conditions  precedent. 

(See  Pr.  Act.  (1903)  Sec.  118.) 

The  plaintiff  (or,  defendant)  has  performed  all  the  terms 
and  conditions  of  the  said  contract  upon  his  part. 

17.  Prayer  for  Writ  of  Mandamus. 

(See  Pr.  Act.  Sec.  3.) 

NOTE  :  To  be  used  in  actions  against  municipal  corpora- 
tions for  the  recovery  of  a  judgment  for  money. 

Plaintiff  demands  $ damages  and  prays  that 

a  writ  of  mandamus  may  issue  against  defendant  to  compel 
the  payment  of  such  judgment  as  plaintiff  may  recover. 

NOTE. — As  the  Supreme  Court  has  exclusive  power  to  issue 
this  writ,  the  above  form  should  be  tised  only  in  suits  com- 
menced in  that  Court. 

Writs  of  execution  cannot  be  used  against  municipal  cor- 
porations. The  proper  method  of  enforcing  judgments  against 
them  is  by  mandamus:  Lyon  vs.  Elizabeth,  43  A*.  /.  L.  158. 
The  -writ  may  be  directed  "Either  to  the  corporation,  or  to  the 
select  body  within  the  corporation  whose  province  and  duty  it 
is  to  perform  the  particular  act,  or  to  put  the  necessary  machin- 
ery in  motion  to  secure  its  performance."  Freeholders  vs. 
Penna.  R.  R.  Co.,  41  N.  J.  L.  250. 

See  Form  308,  and  note. 


91  COMPLAINTS.  Form  20 

Complaints. 

18.  On  a  Book  Account. 

(FROM  SCHEDULE  B.) 

i.  He  sues  for  the  price  of  goods  sold  and  delivered  to 
the  defendant  upon  a  book  account,  of  which  a  copy  is  attach- 
ed hereto,  and  the  whole  of  which  is  due  and  unpaid. 

Plaintiff  demands,  as  damages,  the  amount  due  thereon, 
being  $500  with  interest  from 

19.  Another  Form  of  the  Same. 

(FROM  SCHEDULE  B.) 

1.  He  being  a  merchant  doing  business  in  Trenton,  did, 
between  July  i,  1911,  and  October  i,  1911,  sell  and  deliver  to 
the  defendant  sundry  goods,  under  an  agreemeent  between  the 
parties,   that  plaintiff  should  charge   defendant  a   reasonable 
price  for  the  goods  so  sold. 

2.  The  amount  due  on  the  account  on  October   i,   1911, 
charged   in   conformity   with   said   agreement,   was,   and  still 
is,  $500. 

3.  Defendant  has  not  paid  the  same. 

Plaintiff  demands,  as  damages,  $500  with  interest 
from 

20.  For  Money  Lent. 

(FROM  SCHEDULE  B.) 
First  Count: 

1.  Plaintiff  on  January  i,  1912,  lent  to  defendant  $200  to 
be  repaid  30  days  thereafter. 

2.  Defendant  has  not  paid  the  same  though  the  30  days 
have  elapsed. 

Second  Count: 

1.  Plaintiff  on  January  10,   1912,  lent  to  defendant  $100 
to  be  repaid  on  demand. 

2.  On  January  20,    1912,   plaintiff  demanded   of  the   de- 
fendant payment  thereof. 

3.  Defendant  has  not  paid  said  sum. 

Plaintiff  claims  as  damages  on  the  two  counts  $300  with 
interest  from .  . 


Form  21  COMPLAINTS.  92 

21.  For  Money  Paid  at  the  Request  of  Another. 

1.  On  May  ist,  1912,  at  Newark,  plaintiff  paid  $  1,000  to 
the  use  of  defendant  and  at  his  request  (to  be  repaid  on  de- 
mand), in  paying  to  one  John  Doe  one  year's  rent  of  the 
house  then  occupied  by  defendant   (or,  otherwise  show  what 
the  debt  was  for). 

2.  Plaintiff,  on  July  ist,   1912,  demanded  payment  of  the 
same  from  defendant. 

3.  Defendant  has  not  paid  the  same. 

Plaintiff  demands  as  damages,  $1,000  with   interest   from 
May  i,  1912. 

22.  For  Money  Paid  by  Mistake. 

1.  On  May  loth,  1912,  at  Trenton,  plaintiff,  intending  to 
pay  the  defendant  $500,  paid  him  $1,000  by  mistake. 

2.  On  June  i,  1912,  plaintiff  demanded  of  the  defendant 
the  sum  so  overpaid. 

3.  Defendant  has  not  paid  the  same. 

Plaintiff   demands    as    damages,    $500   with    interest    from 
June  ist,  1912. 

23.  Money  Received  for  Plaintiff's  Use. 

1.  On  January   i,    1912,   at   Trenton,   defendant   received 
$1,000  from  James  Brown  to  be  paid  to  the  plaintiff  on  de- 
mand (or,  received  $ ,.  for  the  sale  of  two  horses 

owned  by  plaintiff,  to  be  paid  on  demand). 

2.  On  January   10,  1912,  plaintiff  demanded  such  sum  of 
defendant,  who  refused  to  pay  it  and  it  remains  unpaid. 

Plaintiff  demands   as   damages,   $1,000   with   interest    from 
January  10,  1912. 

24.  Money  Paid  to  Defendant's  Use. 

1.  On  June  2,  1912,  at  Trenton,  at  the  request  of  defend- 
ant, plaintiff  paid  to  one  James  Brown  $500. 

2.  In   consideration   thereof,   defendant   undertook   to   pay 
said  sum  to  plaintiff  on  demand. 

3.  On  July  ist,  1912,  plaintiff  demanded  payment  of  said 
sum  from  defendant. 


93  COMPLAINTS.  Form  30 

4.     Defendant  has  not  paid  the  same. 

Plaintiff  demands  as  damages,  $500  with  interest  from 
July  i,  1912. 

25.  For  Services  Quantum  Meruit. 

1.  From  May  ist,  1911  to  Jan.  ist,  1912  plaintiff  rendered 
services  to  defendant,  at  his  request,  as  his  household  ser- 
vant (or  otherwise  as  in  the  folloiving  forms*). 

2.  For  said  services,  defendant  undertook  to  pay  plaintiff 
what  the  same  were  reasonably  worth. 

3.  The    same    were    reasonably    worth dollars, 

which  sum  was  due  for  the  same  on  the  day  last  mentioned. 

4.  Defendant  has  not  paid  the  same. 

Plaintiff  demands  as  damages dollars  with 

interest   from 

26.  For  Commissions  of  Broker. 

*As  broker,  in  the  purchase  (or,  sale),  for  the  defendant  of 
certain  negotiable  securities  described  in  the  schedule  hereto 
annexed.  (The  subject  of  the  sale  may  be  described  in  the 
body  of  the  complaint,  if  preferred.) 

27.  For  Services  in  Compiling  and  Editing  a  Book. 

*In   compiling   and   editing   a   certain   book   entitled   "The 

,"  and  in  preparing  the  same  for  the  press,  and 

revising  and  correcting  the  proofs  of  the  same. 

28.  By  an  Architect. 

*As  architect,  in  forming  and  drawing  plans  and  specifica- 
tions and  making  estimates  for,  and  superintending  the  erec- 
tion of  a  dwelling  house  in  Newark,  known  as  Number 
100 street. 

29.  For  Tuition. 

*In  instructing  the  defendant's  children,  Mary  and  John, 
at  the  plaintiff's  school  in  Newark. 

30.  For  Carpentry  Work. 

*  In  putting  in  shelves,  repairing  the  roof  and  piazza  and 
doing  sundry  other  jobs  of  carpentry  work  upon  plaintiff's 
house  number  10 street  in  Trenton. 

*See  first  paragraph  of  Form  25. 


Form  31  COMPLAINTS.  9-4 

31.  For  Advertising. 

1.  Plaintiffs,  at  the  times  herein  stated,  were  the  proprietors 
and  publishers  of  a  daily  newspaper  known  as  the  Evening 
Telegram  published  in 

2.  Between  June  ist  and  July  ist,  1912,  plaintiffs,  at  de- 
fendant's request,  published  in  said  newspaper  certain  adver- 
tisements for  the  defendant. 

(Continue  as  in  paragraps  2,  3  and  4,  in  Form  25.) 

32.  On  a  Note  or  Other  Written  Instrument  for  the  Pay- 
ment of  Money. 

(FROM  SCHEDULE  B.) 

1.  He  sues  for  the  amount  of  a  promissory  note  for  $1,000 
made  by  the  defendant,  Richard  Roe,  to  plaintiff;  a  copy  of 
which  is  hereto  annexed. 

2.  Plaintiff  still  owns  said  note.     It  has  not  been  paid. 
Plaintiff     demands     as     damages,     $1,000     with    .interest 

from 

33.  Another  Form  for  the  Same  Against  Maker  and  En- 
dorser. 

(FROM  SCHEDULE  B.) 

1.  On  August  i,  1911,  the  defendant,  Richard  Roe,  made 
and   delivered   his  note  of  that   date   for  $1,000  payable   to 

Thomas  Brown,  or  order,  3  months  from  date  at  the 

Bank  of  Trenton. 

2.  The  payee  afterwards  endorsed  said  note  to  the  plain- 
tiff. 

3.  On  the  day  the  same  fell  due  it  was  presented  for  pay- 
ment at  the  place  where  it  was  payable,  but  was  not  paid  (or 
state  facts  excusing  presentment}. 

^^-4.     Notice  thereof  was  duly  given  to  said  Brown. 

5.     Said  note  is  now  the  property  of  plaintiff  and  is  unpaid. 
Plaintiff     demands     as     damages,     $1,000     with     interest 
from!.  . 


or,  COMPLAINTS.  Form  38 

34.  By  Maker  of  Accommodation  Note  Against  Person 
Accommodated. 

1.  On  May  i,  1912,  at  Trenton,  plaintiff  made  and  deliv- 
ered to  defendant,  his  promissory  note  for  $1,000,  a  copy  of 
which  is  annexed  hereto. 

2.  It  was  an  accommodation  note,  given  to  defendant  with- 
out consideration  and  at  his  request,  and  upon  his  promise  that 
he  would  pay  it  at  maturity. 

3.  Defendant,  before  its  maturity,  negotiated  it  for  value. 

4.  He  failed  to  pay  it  at  maturity  and  plaintiff  was  thereby 
compelled  to  pay,  and  did  pay,  it  on  September  4,  1912. 

5.  Defendant  has  not  repaid  the  same. 

Plaintiff  demands  as  damages.  $1,000  with  interest  from 
September  4,  1912. 

35.  Averment  of  Excuse  for  Non-presentment  of  Note. 

•  At  maturity  of  said  note,  due  search  and  inquiry  were  made 
for  (the  maker)  at  (the  place  of  payment)  in  order  that  the 
same  might  be  duly  presented  to  him  for  payment,  but  he  could 
not  be  found  and  the  same  was  not  paid ;  of  all  which  due  no- 
tice was  given  to  defendant. 

36.  Averment  of  Waiver  of  Notice  of  Non-Payment. 
Plaintiff  did  not  give  defendant  notice  of  non-payment.    Af- 
terwards, the  defendant,  with  full  knowledge  thereof,  prom- 
ised to  pay  said  note. 

37.  The  Same  Where  Demand  and  Notice  Were  Both 
Waived. 

Afterwards  and  before  this  action,  defendant  endorsed  said 
note  to  plaintiff,  and  in  and  by  said  endorsement  expressly 
waived  demand  of  payment  and  notice  of  non-payment. 

38.     By  a   Surviving  Payee  and  the  Administrator  of  a 
Deceased  Payee,  on  a  Note. 

(NOTE:  The  name  of  the  individual  payee  and  the  name  of 
the  administrator  of  the  deceased  payee,  giving  the  latter' s  title, 
should  be  stated  in  the  title  of  the  cause.} 

i.  On  January  i,  1912,  defendant  made  and  delivered  to 
plaintiff.  John  Stiles,  and  to  one.  Richard  Roe,  now  deceased, 


Form  39  COMPLAINTS.  96 

his  note  of  said  date  for  $1,000,  payable  to  them  or  order,  six 
months  from  date. 

2.  On  February  I,  1912,  said  Richard  Roe  died  intestate. 

3.  On  February  loth,  1912,  plaintiff,  Richard  Fen,  was  duly 
appointed  administrator  of  the  estate  of  Richard  Roe  by  the 
Surrogate  of  Bergen  County  and  qualified  as  such. 

4.  Said  note  is  now  the  property  of  the  plaintiffs  and  has 
not  been  paid. 

Plaintiffs  demand  as  damages,  $1,000  with  interest 
from 

39.  On  a  Joint  Note,  Against  One  of  the   Makers  and 
Against  the  Executor  of  the  Other. 

(NOTE:  The  name  of  the  individual  maker  and  the  name 
of  the  executor  of  the  deceased  maker,  giving  the  later 's  title, 
should  be  stated  in  the  title  of  the  cause.} 

1.  On  January  i,  1912,  defendant,  John  Doe,  and  one  Rich- 
ard Fen,  now  deceased,  made  and  delivered  to  plaintiff  their 
note  of  that  date   for  $1,000  payable  to  him,  or  order,  six 
months  from  date. 

2.  On  February  i,  1912,  said  Richard  Fen  died,  leaving  a 
Will  in  which  he  appointed  defendant,  James  Roe,  his  execu- 
tor. 

3.  On  February  15,  1912,  said  Will  was  admitted  to  pro- 
bate by  the  Surrogate  of  Bergen  County  and  letters  testamen- 
tary were  issued  to  said  Roe,  who  accepted  the  same. 

4.  Said  note  is  now  the  property  of  the  plaintiff  and  has 
not  been  paid. 

Plaintiff  demands  as  damages,  $1,000  with  interest 
from 

40.  Against  an  Executor  Upon  Separate  Notes ;  One  Made 
by  Testator  and  the  other  by  the  Executor  Personally 
for  the  Benefit  of  the  Estate. 

First  Count: 

1.  Plaintiff  sues  for  the  amount  of  a  promissory  note  for 
$1,000  made  by  defendant,  Richard  Roe   (signed  by  him  as 
executor  of  the  estate  of  Thomas  Brown)  to  plaintiff,  a  copy 
of  which  is  hereto  annexed. 

2.  Plaintiff  still  owes  said  note.     It  has  not  been  paid. 


97  COMPLAINTS.  Form  42 

3.  The  consideration  of  said  note  was  $1,000  money  lent 
by  plaintiff  to  said  Roe,  to  be  used,  and  which  was  used,  by 
him  for  the  payment  of  the  debts  of  said  estate  and  otherwise 
for  the  benefit  of  the  said  estate  (or  state  other  facts  showing 
that  the  debt  sued  on  was  incurred  for  the  benefit  of  the  es- 
tate}. 

4.  The  statements  of  paragraphs  2  and  3  of  the  second 
count  are  made  part  of  this  count. 

5.  The   will   of   said   Brown   authorized   said   executor   to 
borrow  money  for  the  use  of  said  estate. 

Second  Count: 

1.  Plaintiff  also  sues  for  the  amount  of  a  promissory  note 
for  $500  made  by  said  Thomas  Brown,  deceased,  in  his  life  time 
to  plaintiff,  a  copy  of  which  is  hereto  annexed. 

2.  Said  Thomas  Brown  died  on  or  about  April  i,   1912, 
leaving  a  will. 

3.  On  April  2Oth,  1912,  said  will  was  admitted  to  probate 
by  the  Surrogate  of  Mercer  County  and  letters  testamentary 
were  issued  thereon  by  aid  Surrogate  to  defendant  and  accept- 
ed by  him. 

Plaintiff  demands  as  damages,  on  the  first  count,  $1,000 

with  interest  from ;  and  upon  the  second  count 

$500,  with  interest  from 

41.  On  a  Bill  of  Exchange;  Drawer  Against  Acceptor. 

1.  On  January  loth,  1912,  at  Trenton,  by  his  bill  of  ex- 
change, plaintiff  required  defendant  to  pay  him  or  order,  $i,- 
ooo  sixty  days  after  date  thereof. 

2.  Defendant  accepted  said  bill  (if  the  bill  is  payable  at  a 
certain   lime  after  "sight,"  the  date  of  acceptance  should  be 
stated}. 

3.  Plaintiff  still  owns  said  bill  and  the  defendant  has  not 
paid  the  same. 

Plaintiff  demands  as  damages,  $1,000  with  interest  from 

42.  On  a  Bill  of  Exchange,  Payee  Against  Acceptor. 

i.  On  March  ist,  1912,  at  Newark,  defendant  accepted  a 
bill  of  exchange  made  by  one  William  Brown,  dated  Febru- 
ary 2Oth,  1912,  requiring  defendant  to  pay  to  plaintiff  or  order 
$1,000,  sixty  days  after  sight  thereof. 


Form  43  COMPLAINTS.  98 

2.  Plaintiff  still  owns  said  bill  and  the  defendant  has  not 
paid  the  same. 

Plaintiff  demands  as  damages,  $1,000  with  interest 
from 

43.  First  Endorsee  Against  Acceptor. 

1.  On  April   ist,   1912,  at  Camden,  defendant  accepted  a 
bill  of  exchange  made  by  one  William  Brown  on  March  25th, 
1912,  requiring  defendant  to  pay  to  the  order  of  John  Robin- 
son, $1,000,  thirty  days  after  sight  thereof. 

2.  Said  Robinson  endorsed  the  same  to  plaintiff  before  ma- 
turity. 

3.  Plaintiff  duly  presented  said  bill  for  payment  but  pay- 
ment was  refused  and  plaintiff  still  owns  the  said  bill. 

Plaintiff  demands  as  damages,  $1,000  with  interest 
from 

44.  Subsequent  Endorsee  Against  Acceptor. 

1.  (Same  as  in  the  preceding  form  to  the  end  of  para- 
graph i). 

2.  By  the  endorsement  of  said  Robinson  and  others  said 
bill  was  transferred  to  plaintiff  before  maturity. 

3.  Plaintiff  duly  presented  it  for  payment. 

4.  Plaintiff  still  owns  said  bill  and  it  has  not  been  paid. 
Plaintiff  demands  (as  in  preceding  forms}. 

45.  On  a  Bill  Directed  by  Drawer  to  Himself,  and  Accept- 
ed by  Him. 

1.  On  October  loth,  1911,  at  Camden,  defendant,  (or,  de- 
fendants, under  their  firm  name  of  John  Doe  &  Co.)  made  to 
their  own  order,  and  accepted  and  delivered  to  plaintiff,  for 
value,  his  (or,  their)  bill  of  exchange,  a  copy  of  which  is  an- 
nexed hereto. 

2.  Said  bill  is  still  the  property  of  the  plaintiff  and  has  not 
been  paid. 

Plaintiff  demands  (as  in  preceding  forms). 


99  COMPLAINTS.  Form  48 

46.  Payee  Against  Drawer  for  Non-Acceptance. 

1.  On  Alay   ist,   1912,  at  Atlantic  City,  defendant,  by  his 
bill  of  exchange  required  one  William  Brown  to  pay  to  plain- 
tiff or  order  $1,200  (thirty  days  after  sight). 

2.  On   May   5th,    1912,   the   same   was   presented   to  said 
Brown  for  acceptance,  but  was  not  accepted. 

3.  Due  notice  of  said  presentment  and  failure  to  accept 
was  given  to  defendant. 

4.  Plaintiff  still  owns  said  bill  and  it  has  not  been  paid. 
Plaintiff  demands  (as  in  preceding  forms). 

47.  First  Endorsee  Against  First  Endorser. 

1.  Defendant,  at  Trenton,  endorsed  to  plaintiff,  a  bill  of 
exchange,  a  copy  of  which  is  hereto  annexed  (or  made  by  one 
\Yilliam  Brown,  at  the  City  of  New  York,  State  of  New  York, 
on  May  I5th,  1912,  requiring  one  John  Robinson  to  pay  to  the 
order  of  defendant  $1,200  one  month  after  said  date). 

2.  Said  bill  was  accepted  by  said  Robinson  on  May  2Oth, 
1912. 

3.  On  June   I5th,   1912,  the  same  was  presented  to  said 
Robinson  for  payment  but  was  not  paid. 

4.  Due  notice  of  said  presentment  and  failure  to  pay  was 
given  to  defendant. 

5.  Plaintiff  still  owns  said  bill  and  it  has  not  been  paid. 
Plaintiff  demands  (as  in  preceding  form). 

48.  Endorsee  Against  Drawer,  Acceptor  and  Endorser. 

1.  On  June  ist,  1912,  the  defendant,  John  Jones,  by  his 
bill  of  exchange,  required  the  defendant  William  Brown  to 
pay  to  the  order  of  the  defendant,  John  Robinson,  $1,000  thirty 
days  after  sight  thereof. 

2.  On  June  6th,  1912,  said  Brown  accepted  the  same. 

3.  Afterwards  and  before  maturity  said  Robinson  endorsed 
the  same  to  plaintiff. 

4.  On   July   6th,    1912,   the   same   was   presented  to   said 
Brown  for  payment,  but  was  not  paid. 

5.  Due  notice  of  said  presentment  and  non-payment  was 
given  to  the  other  defendants. 


Form  49  COMPLAINTS.  100 

6.     The  said  bill  has  not  been  paid. 

Plaintiff  demands  as  damages,  $1,000  with  interest   from 
July  6th,  1912. 

49.  On  Bank  Check;  Payee  Against  Drawer. 

1.  On  June  ist,  1912,  defendant  (or,  the  defendants,  un- 
der their  firm  name  of  John  Doe  &  Co.)  made  and  delivered 
to  plaintiff  his   (their)   check  in  writing,  dated  on  that  day 
and  directed  the  same  to  the  First  National  Bank  of  Jersey 
City,  and  thereby  required  said  Bank  to  pay  to  plaintiff  or 
order  $1,000. 

2.  The  same  was  duly  presented  by  plaintiff  to  said  Bank 
for  payment  but  was  not  paid ;  of  all  which  due  notice  was 
given  to  defendant. 

3.  Said  check  is  still  the  property  of  plaintiff  and  has  not 
been  paid. 

Plaintiff     demands     as     damages,     $1,000     with     interest 
from 

50.  Endorsee  Against  Drawer  and  Endorser. 

1.  On  June  I,  1912,  defendant,  John  Doe,  made  his  check 
in  writing,  dated  on  that  day,  and  directed  the  same  to  the 
First  National  Bank  of  'Newark  and  thereby  required  said 
Bank  to  pay  to  defendant,  James  Fen  or  order,  $2,000  and 
deliver  it  to  said  Fen. 

2.  Afterwards  said  Fen  endorsed  the  same  to  plaintiff  (or, 
endorsed  the  same  and  delivered  it  so  endorsed ;  and  thereafter 
it  came  lawfully  into  the  possession  of  the  plaintiff)  for  value. 

3.  Said  check  was  duly  presented  by  the  plaintiff  for  pay- 
ment but  was  not  paid;  of  all  which  due  notice  was  given  to 
defendants. 

4.  Said  check  still  remains  the  property  of  the  plaintiff  and 
has  not  been  paid. 

Plaintiff     demands     as     damages,     $2,000     with     interest 
from 


101  COMPLAINTS.  Form  52 

51.  Against  a  Bank  on  a  Certified  Check. 

1.  Defendant  is  a  corporation  duly  organized  and  incorpor- 
ated as  a  National  Banking  Association  under  the  laws  of  the 
United  States. 

2.  On  July  ist,  1912,  one  John  Doe  made  his  check  (or, 
certain  persons,  under  their  firm  name  of  John  Doe  &  Co., 
made  their  check)  dated  on  that  day  and  directed  it  to  defend- 
ant and  thereby  required  defendant  to  pay  to  plaintiff  or  order 
$1,000  and  delivered  the  same  to  plaintiff   (if  payable  to  a 
third  party,  state  the  facts  as  in  the  preceding  form}. 

3.  On  July   ist,    1912,  the  defendant  certified  thereon  in 
writing,  that  the  said  check  was  good. 

4.  On  July  5th,  1912,  said  check  was  duly  presented  to  the 
defendant  for  payment  but  was  not  paid. 

5.  Said  check  is  still  the  property  of  plaintiff. 

Plaintiff  demands  as  damages,  $1,000  with  interest  from 
July  5,  1912. 

NOTE:  For  the  difference  in  legal  consequences,  whether 
the  check  be  certified  at  the  request  of  the  drawer  or  the  holder, 
see  Times  Sq.  Auto  Co.  vs.  Rutherford  Nat.  Bank,  77  N.  J.  L. 
649.  If  it  be  done  at  the  drawer's  request,  the  bank  may  after- 
wards refuse  payment  if  the  drawer  for  good  cause,  direct  it 
to  do  so;  Contra,  if  certified  at  request  of  the  holder. 

52.  On  Bond  Conditioned  to  Pay  Money. 

1.  Defendant,  by  his  bond,  dated  May  ist,  1911,  bound  him- 
self under  seal,  to  plaintiff  to  pay  plaintiff  $5,000,  on  condi- 
tion, nevertheless,  that  said  obligation  should  be  void  if  defend- 
ant pay  to  plaintiff  $2,500  on  May   ist,   1912,  with  interest 
from  the  date  of  the  bond. 

2.  Nothing  has  been  paid  on  said  bond. 

3.  Plaintiff    demands,    as    damages,    $2,500    with    interest 
from  May  ist,  1912,  and  judgment,  according  to  the  statute, 
for  $5,000. 

NOTE  :  The  judgment  on  a  bond  conditioned  to  pay  money 
must  be  entered  for  the  penal  sum  stated  in  the  bond.  Coinp. 
Stat.  3778,  Sec.  5. 


Form  53  COMPLAINTS.  102 

53.  On  Bonds  Other  Than  for  the  Payment  of  Money. 

1.  On  April  ist,  1912,  defendant  made  his  bond  under  his 
seal  to  plaintiff,  a  copy  of  which  is  annexed  hereto. 

2.  (State  a  breach;  see  following  forms.) 

3.  (State  any  other  breach.) 
(Conclude  as  in  form  52.) 

54.  Another  Form,  Not  Annexing  a  Copy  of  the  Bond. 

i  On  April  ist,  1912,  the  defendant  by  his  bond  under 
his  seal,  bound  himself  to  the  plaintiff  to  pay  to  the  plaintiff 
$1,000. 

2.  Said  obligation  was  upon  the  express  condition  that  if 
(state  the  substance  or  words  of  the  condition'),  said  obliga- 
tion was  to  be  void. 

3.  (State  breach  as  in  other  cases.) 
Plaintiff  demands  (as  in  Form  52). 

55.  On  a  Bond  for  the  Fidelity  of  a  Clerk. 

1.  On  June  ist,   1911,  plaintiffs,  being  then  about  to  em- 
ploy one  John   Doe  as   clerk,  defendants  bound  themselves, 
under  seal,  to  the  plaintiffs   (state  the  condition  of  the  bond 
verbatim  or  in  substance;  for  instance),  that  if  John  Doe,  at 
any  time  or  times  during  his  employment  by  the  plaintiffs, 
should  not  lawfully  perform  his  duties  as  such  clerk,  or  should 
fail  to  account  to  the  plaintiffs  for  all  moneys  or  other  prop- 
erty received  by  him  for  the  use  of  plaintiffs,  the  defendants 
would  pay  to  plaintiffs  whatever  loss  they  might  sustain  by 
reason  thereof,  not  exceeding  $10,000. 

2.  Between  January  i,  1912  and  July  ist,  1912,  said  Doe 
as  such  clerk,  received  money  and  other  property,  amounting 
to  the  value  of  $3,000  to  the  use  of  the  plaintiffs,  for  which 
he  has  not  accounted  to  them  and  which  he  converted  to  his 
own  use,  whereby  the  plaintiffs  have  sustained  a  loss  of  $3,000. 

3.  Said  loss  has  not  been  repaid  to  plaintiffs. 
(Conclude  as  in  form  52.) 


103  COMPLAINTS.  Form  57 

56.  On  an  Arbitration  Bond. 

1.  On  March  loth,  1912,  defendant  by  his  bond  under  his 
seal,  became  bound  to  the  plaintiff  in  the  sum  of  $5,000,  con- 
ditioned to  abide  the  award  of  John  Stiles  upon  certain  differ- 
ences between  plaintiff  and  defendant.     A  copy  of  said  bond 
is  hereto  annexed. 

2.  On  April  ist,  1912  (or,  thereafter  and  within  the  time 
limited  for  making  the  award),  by  agreement  of  plaintiff  and 
defendant,  the  time  for  making  the  award  was  extended  to 
May  ist,  1912. 

3.  Said   arbitrator,   having  undertaken   the   arbitration   on 
April  2Oth,  1912,  duly  made  and  published  his  award  in  writ- 
ing upon  the  matter  submitted,  and  thereby  awarded  that  the 
defendant  should  (indicate  briefly  the  provision  which  defend- 
ant has  disregarded}  ;  a  copy  of  said  award  is  annexed  hereto. 

4.  (State   the   performance   by   plaintiff   of   anything   re- 
quired by  hhn  to  be  done  by  the  aiuard,  or  allege  tliat  plain- 
tiff has  fully  performed  the  terms  of  said  aivard  upon  his  part.) 

5.  Defendant  was  duly  notified  of  said  award  and  plaintiff 
demanded  of  him  performance  thereof. 

6.  Defendant  has  not  (state  the  breach,  specifying  the  par- 
ticular act  or  omission). 

(Conclude  as  in  form  52.) 

57.  For  Deficiency  upon  Sale  of  Land  After  Foreclosure 
of  Mortgage. 

(See  Comp.  St.  p.  3421.) 

1.  On  May  ist,  1907,  defendant  executed  his  bond  of  that 
date  to  A.  B.  in  the  penal  sum  of  $10,000  conditioned  to  pay 
$5,000  with  interest  at  5%. 

2.  To  secure  said  bond,  defendant  executed  a  mortgage 
of  the  same  date  to  A.  B.  upon  certain  lands  whereof  defend- 
ant was  seized  in  fee  simple  in  Trenton,  Mercer  County,  known 

as  lot  10  in  Block  25,  on  a  map  entitled  " " 

(or  otherzi'ise  briefly  describe  the  property). 

3.  On  June  ist,  1910,  said  A.  B.  assigned  said  bond  and 
mortgage  to  plaintiff. 

4.  On  April  loth,  1912,  a  final  decree  for  the  sale  of  said 
land  and  the  foreclosure  of  said  mortgage  was  made  in  the 
Court  of  Chancery  in  a  suit  brought  for  that  purpose  by  this 


Form  58  COMPLAINTS.  104 

plaintiff  against  this  defendant  and  others :  and  the  said  de- 
cree adjudged  that  there  was  then  due  upon  said  bond  and 
mortgage,  the  sum  of  $5,600  and  directed  that  a  writ  of 
fieri  facias  be  issued  to  the  Sheriff  of  Mercer  County  for 
the  sale  of  said  mortgaged  premises  to  make  that  sum  with 
interest  at  the  rate  of  6  per  cent,  per  annum  from  April  ist, 
1912  and  complainant's  costs  in  that  suit  which  were  there- 
upon taxed  at  the  sum  of  $100. 

5.  On  July  ist,  1912,  and  within  six  months  of  the  com- 
mencement of  this  action,  the  said  Sheriff,  by  virtue  of  said 
writ  of  execution,  duly  sold  said  premises,  according  to  law, 
at  public  vendue,  to  this  plaintiff,  he  being  then  the  highest  bid- 
der at  said  sale,  for  the  sum  of  $4,000. 

6.  The  Sheriff's  lawful  fees  and  disbursements  upon  said 
execution  amounted  to  $120  which  were  thereupon  paid  by 
plaintiff  to  said   Sheriff  all  of  which  appears  upon  the  said 
writ  of  execution  which  was  duly  returned  into  Court. 

7.  After  crediting  upon  the  said  decree  and  execution,  the 
amount  of  the  proceeds  of  said  sale,  there  remains  due  to  this 
plaintiff  from  said  defendant  upon  the  same,  a  deficiency  of 
the  amount  of  $1,900. 

8.  Defendant  has  not  paid  said  sum  of  $1,900,  or  any  part 
thereof. 

Plaintiff  demands  $1,900  with  interest  from  July  ist,  1912. 

58.     On  a  Foreign  Judgment. 

1.  On  July  loth,  1912,  at  Boston,  in  the  State  of  Massa- 
chusetts,  the   Supreme  Judicial   Court   of  that   State,   in   an 
action  therein  pending  by  this  plaintiff  against  this  defendant, 
by  its  final  judgment  duly  adjudged  that  the  defendant  should 
pay  to  the  plaintiff  the  sum  of  $1.000. 

2.  Defendant  has  not  paid  said  sum  or  any  part  thereof. 

3.  Plaintiff  demands  $1,000  with  interest  from  July   loth, 
1912. 

NOTE:  Judicial  notice  is  taken  of  the  jurisdiction  of  the 
Supreme  Courts  of  Sister  States. 

If  the  Court  was  one  of  inferior  jurisdiction,  add  in  another 
paragraph:  Said  Court  had  jurisdiction  to  hear  and  deter- 
mine said  cause  of  action.  Sec  note  to  Form  228. 


105  COMPLAINTS.  Form  60 

59.  Defendants  in  Alternative;  Action  on  a  Contract  of 
Sale. 

(FROM  SCHEDULE  B.) 
Supreme  Court  of  New  Jersey. 
Hudson  County. 

A.  B.,  Plaintiff, 

f 

r   Complaint. 
C.  D.,  and  in  the  alternative,  E.  F., 

Defendants. 
Plaintiff  (state  residence)  says  that: 

1.  On  January  2,   1912,  defendant,  C.   D.,  represented  to 
plaintiff  that  he  (C.  D.)  was  the  agent  of  defendant,  E.  F., 
authorized    to    sell    the    securities    hereinafter    mentioned    of 
said  E.  F. 

2.  On  the  same  day,  by  written  agreement,  plaintiff,  rely- 
ing on  the  said  representations,  agreed  to  buy,  and  said  C.  D. 
agreed  to  sell,  for  account  of  said  E.  F.,  100  shares  of  the 
capital  stock  of  the —     — company,  for  the  price  of  $10,000; 
delivery  to  be  made  and  the  price  paid  on  the  then  next  day. 
A  copy  of  said  agreement  is  annexed. 

3.  Neither  of  said  defendants  delivered  said  stock  at  the 
time  agreed,  nor  at  all,  and  both  of  them  still  refuse  to  deliver 
it. 

4.  Said  C.  D.  still  insists  that  he  was  duly  authorized  by 
said  E.  F.  to  make  said  contract;  but  said  E.  F.  denies  that 
he  had  so  authorized  C.  D.,  and  he  repudiates  the  contract. 
Plaintiff  does  not  know  whether  or  not  said  C.  D.  was  so 
authorized. 

Plaintiff  demands  against  the  defendant,  E.  F.,  or,  in  the 
alternative,  against  the  defendant,  C.  D.,  $3,000  damages. 

NOTE:  See  a  form  of  judgment  on  this  complaint.  Form 
301. 

60.  Sales:     For  the  Price  of  Goods  Delivered  to  a  Third 
Party  at  Defendant's  Request. 

1.  On  June   1st,   1912,  plaintiff  sold  to  defendant,  and  at 
his  request,  delivered  to  one  James  Brown,  100  barrels  of  flour. 

2.  At  said  sale  defendant  promised  to  pay  plaintiff,  im- 
mediately upon  the  delivery,  $800  as  the  price  of  the  same. 


Form  61  COMPLAINTS.  106 

3.     Defendant  has  not  paid  said  sum  or  any  part  thereof. 
Plaintiff  demands  as  damages  $800.  with  interest  from  June 
ist,  1912. 

61.  Sales:    For  Not  Delivering  Goods  sold. 

1.  On   April    ist,    1912,   defendant,   at   Trenton,   sold   the 

plaintiff  100  barrels  of  flour  of  the  brand ,  for  $6 

a  barrel  and  on  a  credit  of  30  days. 

2.  A  term  of  the  contract  of  sale  was  that  the  defendant 
should  deliver  said  flour  on  the  day  after  the  sale,  at  the  rail- 
road station,  of  the  Pennsylvania  Railroad  in  Trenton,  to  be 
transported  to  the  plaintiff  at  Princeton. 

3.  Defendant  did  not  deliver  said  flour  as  agreed,  and  has 
ever  since  refused  to  deliver  the  same  to  plaintiff  although 
requested  so  to  do. 

4.  Plaintiff  demands  $ damages. 

62.  Sales :    By  Vendee  of  Chattels  on  Failure  of  Title. 

1.  On  July  ist,  1912,  defendant  sold  and  delivered  to  plain- 
tiff, for  $500  paid  to  him  by  plaintiff,  a  certain  piano  as  the 
property  of  defendant. 

2.  Said  piano  was  not  then  the  property  of  defendant  but 
belonged  to  one  John  Styles. 

3.  Thereafter    said    Styles    sued    the    plaintiff    to    recover 
possession   of   the    same   and   notwithstanding   plaintiff   made 
diligent  defense.   Styles   recovered  judgment  for  a  return  of 
said  piano  under  which  judgment  the  piano  was  taken   from 
the  plaintiff's  possession  by  said  Styles. 

4.  After  the  commencement  of  said  action,  plaintiff  gave 
defendant  due  and  timely  notice  of  the  same  and  required  him 
to  defend  it,  but  defendant  neglected  to  defend  the  same. 

5.  Plaintiff  demands  $600  damages. 

63.  Sales :     On  Warranty  of  a  Horse ;  Special  Damages. 

1.  On  April  ist,  1912,  defendant;  offering  to  sell  to  plaintiff 
a  certain  horse,  warranted  the  same  to  be  sound,  kind,  and 
true,  and  gentle  and  quiet  in  harness. 

2.  Plaintiff,   relying   upon    said   warranty,    purchased    said 
horse  from  defendant  and  paid  defendant  $500  therefor. 

3.  At  the  time  of  said  warranty  and  sale,  said  horse  was 
unsound,  unkind,  and  untrue;  and  restive  and  ungovernable  in 


107  COMPLAINTS.  Form   65 

harness;  and  had  an  infectious  disease,  to  wit:  the  g'anders, 
and  was  worthless.  Of  all  which  defendant  then  had  notice. 

4.  Thereafter,  said  horse  infected  with  the  said  disease 
three  other  horses  of  plaintiff  of  the  value  of  $1,000;  where- 
by one  of  said  horses  died  and  the  others  were  rendered  worth- 
less, and  plaintiff  was  put  to  great  expense  in  attempting  to 
cure  the  same. 

Plaintiff  demands  $2,000  damages. 

64.  Sales :    For  Goods  Made  to  Order  by  Sample,  and  Not 
Accepted. 

1.  On  July  1st,  1912,  defendant  agreed  with  plaintiff  that 
plaintiff  should  make  for  defendant  100  chairs,  similar  to  a 
sample  chair  then  in  plaintiff's  store,  and  promised  to  pay  for 
the  same,  upon  delivery  $400. 

2.  Plaintiff  made  said  chairs  according  to  said  agreement 
and  on  August  loth,  1912,  tendered  delivery  of  the  same  to 
defendant  and  has  ever  since  been  ready  and  willing  to  deliver 
the  same. 

3.  Defendant  refused  and  still  refuses  to  accept  said  chairs 
or  to  pay  for  the  same. 

Plaintiff  demands,  as  damages,  $400,  with  interest  from 
August  loth,  1912. 

NOTE:  See  Sales  Act,  Comp.  St.  p.  4651,  Sec.  19,  Rule 
2 ;  p.  4663,  Sec.  66. 

65.  On  Covenant  of  Warranty  in  a  Conveyance. 

1.  On  May  ist,  1911,  defendant  under  his  hand  and  seal, 
made  and   delivered  to  plaintiff,  a  deed  of   certain  land   in 
Middletovvn,   County  of   Monmouth,  bounded  north  by   land 
of  John  Smith,  south  and  east  by  land  of  James  Stiles  and 
west  by  the Road  and  containing  about  100  acres. 

2.  In  said  deed,  defendant  covenanted  to  warrant  and  de- 
fend said  property  to  plaintiff  against  all  claims  and  demands 
whatsoever. 

3.  The  defendant  was  not,  but  one  William  Brown  was,  at 
the  time  of  making  said  deed,  the  lawful  owner  of  said  land 
in-  fee  simple. 

4.  On  April   ist,   1912,  said  Brown  evicted  plaintiff  from 
said  farm  and  still  withholds  possession  thereof  from  him. 

Plaintiff  demands  $10,000  damages. 


Form  66  COMPLAINTS.  108 

66.  On  Covenant  of  Seizin. 

1.  On  May  ist,  1911,  defendant  under  his  hand  and  seal, 
made  and  delivered  to  plaintiff,   a   deed  of  a  certain   farrri 
(describe)  and  in  said  deed  covenanted  with  the  plaintiff  that 
he,  the  defendant,  was  well  seized  of  said  farm,  as  of  a  good, 
indefeasible  estate  in  fee  simple. 

2.  Defendant  was  not  then  well  seized  of  said  farm,  but 
one  William  Brown  was  then  well  seized  thereof  in  fee  simple. 

3.  Plaintiff  paid  defendant  $5,000  for  said  farm  on  receiv- 
ing said  deed. 

Plaintiff  demands  $5,000  damages. 

67.  On  Covenant  Against  Incumbrances. 

1.  On  May  ist,  1912,  defendant  under  his  hand  and  seal, 
made  and  delivered  a  deed  to  plaintiff,  conveying  in  fee  simple 
a  lot  of  land  in  Trenton,  N.  J.  (briefly  describe  the  land  suffi- 
ciently to  identify). 

2.  Said  deed  contained  a  covenant  on  the  part  of  defend- 
ant that  there  was  no  encumbrance  upon  said  property,  a  copy 
of  which  covenant  is  hereto  annexed. 

3.  At  the  time  of  the  delivery  of  said  deed,  the  premises 
were  subject  to  the  right  of  dower  of  one  Jane  Stiles,  widow 
of  John  Stiles,  a  former  owner  of  said  land. 

4.  At  the  time  of  the  delivery  of  said  deed,  said  premises 
were  also  subject  to  the  lien  of  a  judgment  for  $500,  recovered 
on  April   i,   1910,  in  the  Supreme  Court  of  New  Jersey  by 
one  John  Doe  against  the  said  John  Stiles,  the  former  owner 
of  said  premises. 

5.  By  reason  of  the  premises,  plaintiff  was  obliged  to  pay 
and  did  pay  on  July  ist,  1912,  the  sum  of  $2,000  in  extinguish- 
ing the  said  right  of  dower  and  the  lien  of  the  said  judgment. 

Plaintiff   demands  as   damages,  $2,000  with  interest  from 
July  i,  1912. 

68.  On  Covenant  for  Quiet  Enjoyment ;  Against  Landlord, 
Special  Damages. 

i.     On  May  ist,  1911,  defendant,  by  lease  under  seal,  let  to 

plaintiff  the  house,  No State  Sjreet,  in  Trenton,  for  two 

years ;  and  therein  covenanted  that  plaintiff  should  quietly  en- 
joy possession  thereof  for  said  term. 


109  COMPLAINTS.  Form  70 

2.  Thereupon  defendant  took  possession  of  said  premises 
and  carried  on  the  business  of  a  tailor  therein. 

3.  On  October   ist,   1911,  one  William  Brown,  who  was 
the   lawful   owner   of   said   house,   lawfully   evicted   plaintiff 
therefrom  and  still  withholds  possession  thereof  from  him. 

4.  Plaintiff   was    thereby    prevented    from   continuing   his 
business  as  a  tailor  at  said  place,  was  compelled  to  expend  $500 
in  moving  his  business  and  goods,  and  because  of  such  remov- 
al lost  the  custom  of and  of who  had 

theretofore  been  his  customers. 

Plaintiff  demands  $1,000  damages. 

69.  On  Covenant  Against  Tenant  For  Not  Keeping  Prem- 
ises in  Repair. 

1.  On  June  ist,  1911,  plaintiff  and  defendant,  executed  a 
lease  by  which  plaintiff  leased  to  defendant  for  five  years  from 
that  date,  his  dwelling  house  with  stable  and  sheds  attached, 
in  Orange. 

2.  Defendant  covenanted  in  said  lease  that  he  would,  dur- 
ing the  term,  at  his  own  cost,  keep  said  premises  in  good  repair, 
and  at  the  expiration  of  the  term,  leave  the  premises  in  as 
good  condition  as  he  received  the  same,  reasonable  wear  and 
tear  excepted  (or,  defendant  covenanted  in  said  lease  to  keep 
said  premises  in  good  repair,  a  copy  of  which  covenant  is  here- 
to annexed). 

3.  Defendant  occupied  said  premises  during  the  term  and 
during  his  occupancy  some  of  the  shingles  of  the  roof  of  said 
house  became  rotten  and  broken,  so  as  to  admit  rain-water,  and 
the  defendant  has  never  repaired  the  same. 

4.  By  reason  thereof,  the  plastering  upon  the  walls  of  said 
house  has  been  injured  and  in  many  places  has  fallen  down. 

Plaintiff  demands  $500  damages. 

70.  Against  Executor  of  Lessee  for  Rent  Due  Before  His 
Death. 

1.  On  June   ist,   1911,  plaintiff  and  John   Stiles,  late  of 
Camden,  deceased,  executed  a  lease  of  which  a  copy  is  here- 
to annexed,  whereby  plaintiff  let  the  premises  therein  described 
to  said  Stiles. 

2.  By  virtue  of  said  lease,  said  Stiles  entered  upon  and  was 
possessed  of  the  demised  premises. 


Form  71  COMPLAINTS.  110 

3.  On  October  3d,  1911,  during  the  said  term,  said  Stiles 
died  leaving  a  will  appointing  the  defendant  his  executor. 

4.  Said  will  was  admitted  to  probate  by  the  Surrogate  of 
Camden  County  and  letters  testamentary  thereon  were  issued 
to  defendant. 

5.  The  rent,  amounting  to  $250,  under  said  lease  for  the 

quarter  ending  on (name  a  day  before  the  lessee's 

death)  became  on  said  day  due  to  the  plaintiff  from  said  Stiles. 

6.  Said  rent  has  not  been  paid. 

Plaintiff  demands  as  damages,  $250  with  interest 
from 

71.  Against  Landlord  for  Breach  of   Covenant  to   Keep 
Premises  in  Repair:   Special  Damage. 

1.  On  May  ist,  1912,  plaintiff  and  defendant  executed  a 
lease,  by  which   defendant   leased  to   plaintiff,  the  premises 

known  as  No.  10  Main  Street  in for  one  year  from 

that  date. 

2.  Said  lease  contained  a  covenant  on  the  part  of  defend- 
ant to  keep  the  premises  in  repair.     A  copy  of  said  covenant 
is  annexed  hereto. 

3.  The  plaintiff  entered  into  possession  of  said  premises 
under  said  lease  and  used  the  same  as  a  store  and  warehouse 
for  storing  and  selling  articles  of  dry  goods. 

4.  Defendant  has  failed  to  perform  said  covenant,  and  has 
allowed  the  wall  and  roof  to  become  and  remain  leaky,  where- 
by water  has  entered  into  said  premises  and  utterly  ruined  a 
portion  of  plaintiff's  said  goods  and  seriously  injured  others. 

Plaintiff  demands  $500  damages. 

72.  On  Contract  to  Convey. 

i.  On  April  ist,  1912,  plaintiff  and  defendant  signed  an 

agreement  for  the  sale  of  lands  on street,  Jersey 

City,  a  copy  of  which  is  hereto  annexed. 

(Or  i.  On  April  ist,  1912,  defendant  agreed  in  writing 
that  he  would  on  May  15,  1912,  execute  to  plaintiff  a 
warranty  deed  conveying  the  lot  numbered  40  on  Block 

numbered on  the  official  map  of  Jersey  City,  free  from 

incumbrances ;  and  plaintiff  in  said  writing  agreed  to  pay  $10,- 
ooo  for  the  same,  viz. :  $500,  on  executing  the  contract  and 


ill  COMPLAINTS.  Form  73 

the  balance  in  cash  on  the  delivery  of-  the  deed.  Plaintiff  paid 
$500.  on  executing  the  contract  in  accordance  with  its  terms.) 

2.  On  May  15,  1912,  plaintiff  demanded  a  deed  of  convey- 
ance from  defendant  in  accordance  with  the  terms  of  the  con- 
tract, and  then  tendered  to  him  the  balance  of  the  above  men- 
tioned price   (or,  was  ready  and  willing,  and  offered,  to  de- 
fendant to  pay  the  balance  of  said  contract  price  and  duly  to 
perform  all  the  terms  of  said  contract  upon  his  part,  upon  the 
like  performance  by  defendant.) 

3.  Defendant  refused  then  to  deliver  any  deed  of  convey- 
ance for  said  property  and  still  refuses  so  to  do. 

(Or,  3.  There  is  a  mortgage  upon  said  property  made  by 
John  Doe  to  Thomas  Stiles  for  $5,000,  dated  June  ist,  1910, 

and  recorded  June  5,  1910  in  Book of  Mortgages  for 

Hudson  County,  page ,  which  is  still  unsatisfied  of  rec- 
ord, Or  any  other  defect  of  title.} 

Plaintiff  demands dollars  damages. 

73.     On  Contract  to  Purchase. 

1.  On  May  ist,  1912,  defendant  signed  a  written  contract 
for  sale  of  land  in  Newark,  a  copy  of  which  is  hereto  annexed. 

2.  On  July  ist,  1912,  plaintiff,  being  then  the  owner  in  fee 
simple  of  said  property,  and  the  same  then  being  free  from 
all  incumbrance,  tendered  to  the  plaintiff  a  sufficient  deed  of 
conveyance  of  the  same,  made  in  accordance  with  the  terms  of 
said  contract  (or,  was  ready  and  willing,  and  offered  to  convey 
the  same  to  defendant  by  a  sufficient  deed  of  conveyance  in 
accordance  with  the  terms  of  the  contract)   on  payment,  by 
the  defendant,  of  the  price  in  the  manner  stated  in  the  con- 
tract. 

3.  Defendant  then  refused  to  pay  the  price  and.  still  re- 
fuses to  do  so. 

The  plaintiff  demands  $1,000  damages. 

NOTE:  //  the  contract  contained  special  conditions  to  be 
performed  by  plaintiff  tfic  complaint  should  allege  their  per- 
formance generally.  See  Form  16. 


Form  74  COMPLAINTS.  112 

74.  For  Use  and  Occupation. 

1.  Defendant  occupied  the  house  and  lot  No.   100  State 

Street  in by  permission  of  plaintiff  from  May  ist, 

1912  to  July  ist,  1912,  under  an  agreement  to  pay  plaintiff 
monthly  a  reasonable  sum  for  the  use  thereof. 

2.  The  use  of  said  premises  for  said  period  was  reasonably 
worth  $200. 

3.  The  defendant  has  not  paid  the  same. 

Plaintiff      demands      as      damages     $200      with      interest 
from 

75.  For  Services  of  an  Attorney  on  an  Implied  Contract 
to  Pay. 

1.  Plaintiff,   being  an  attorney  at  law  of  this   State,  ren- 
dered services  as  such  for  defendant,  at  defendant's  request,  be- 
tween January  i,  ,1911  and  January  i,  1912,  under  an  agree- 
ment between  them,  that  the  plaintiff  should  charge  reasonable 
fees  for  said  services,  and  his  disbursements  and  expenses  in- 
cidental thereto;  and  that  defendant  would  pay  plaintiff  the 
amount  due  on  plaintiff's  account  of  said  fees,  disbursements 
and  expenses. 

2.  Plaintiff  kept  an  account  of  the  same  and  the  amount 
charged  thereon  in  conformity  with  said  agreement  was  $i,- 
ooo  on  February  i,  1912  and  on  that  day  plaintiff  rendered 
said  account  to  defendant. 

3.  Defendant  has  not  paid  the  same  or  any  part  thereof. 
Plaintiff   demands   as   damages   $1,000   with    interest    from 

February  i,  1912. 

76.  Against  an  Attorney  for  Not  Collecting  a  Note. 

1.  On  January  20,  1911,  defendant  was  and  has  ever  since 
been  a  practicing  attorney-at-law. 

2.  On  that  day  plaintiff  delivered  to  defendant,  as  such  at- 
torney, a  promissory  note  of  one  Richard  Roe  for  $700,  dated 
July  i,  1910,  payable  on  demand,  with  instructions  to  sue  upon 
the  same  immediately. 

3.  Defendant  failed  to  exercise  reasonable  care  and  dili- 
gence in  collecting  said  note  and  neglected  to  bring  suit  upon 
it  for  one  year  after  the  same  was  delivered  to  him. 


113  COMPLAINTS.  Form  78 

4.  When  said  note  was  delivered  to  defendant  and  thence 
until  October  i,  1911,  said  Richard  Roe  had  ample  property 
from  which  a  judgment  and  execution  upon  said  note  could 
have  been  collected  in  full,  but  in  November,  1911,  said  Roe 
became,  and  has  ever  since  been,  insolvent,  whereby  said  note 
has  never  been  paid. 

Plaintiff  demands  as  damages,  $700  with  interest 
from.  . 


77.  Against  an  Attorney  for  Neglecting  to  File  an  Answer. 

1.  In  April,  1911,  defendant  was  a  practicing  attorney-at- 
law  of  this  State.    In  that  month,  plaintiff  retained  him  as  such 
attorney  and  paid  him  $100  retainer   (or,  employed  him  as 
such  attorney  for  reward)   to  defend,  on  behalf  of  plaintiff, 
an  action  which  had  been  brought  against  plaintiff  by  James 
Stiles  and  which  was  then  pending  in  the  Supreme  Court  of 
New  Jersey,  for  the  recovery  of  a  large  sum  of  money. 

2.  Plaintiff  had  a  just  defense  to  said  action. 

3.  Such  proceedings  were  had  in  said  action  that  it  be- 
came the  duty  of  defendant,  as  the  attorney  of  this  plaintiff, 
to  file  therein  on  or  before  May  i,  1911,  a  plea  showing  such 
defense. 

4.  Defendant   wholly   neglected   to  file   said   plea   and   by 
reason  of  his  neglect,  judgment  by  default  was  entered  in 
said   cause   against   this   plaintiff,   and   thereby   plaintiff   was 
compelled  to  pay  the  costs  of  having  said  judgment  vacated 
and  was  put  to  other  costs  and  charges  in  employing  another 
attorney  to  defend  said  action. 

Plaintiff  demands  $500  damages. 

78.  Against   an   Attorney   for   Negligence   in   Examining 
Title. 

1.  At  the  times  hereinafter  mentioned-,  defendant  was  a 
practicing  attorney-at-law  of  this  State. 

2.  In  June,   1911,  plaintiff  was  negotiating  with  one  John 
Doe  for  the  purchase  from  him,  for  $5,000,  of  a  tract  of  land 
in  the  City  of  Plainfield,  New  Jersey,  known  as  (briefly  de- 
scribe the  property  sufficiently  to  identify  it).     Said  Doe  as- 
sumed to  have  power  to  convey  a  good  title  to  said  property 
in  fee,  free  of  all  encumbrances. 


Form  79  COMPLAINTS.  114 

3.  In  the  last  mentioned  month,  plaintiff  employed  defend- 
ant as  such  attorney,  to  examine  the  title  of  said  Doe  to  said 
property,  for  reward,  and  to  report  and  advise  plaintiff  whether 
or  not  it  was  good  and  free  from  encumbrance ;  which  employ- 
ment defendant  accepted. 

4.  Defendant  negligently  and  unskillfully  conducted  said 
examination  of  title,  and  overlooked  a  mortgage  of  the  amount 
of  $2,000  then  on  record,  made  by  said  Doe  to  one  John  Stiles, 
covering  the  said  premises;  which  mortgage  was  then  un- 
satisfied; and  defendant  then  negligently  advised  plaintiff  that 
said  Doe  had  a  good  title  to  said  property  free  from  all  en- 
cumbrance of  record;  and  thereby  induced  plaintiff  to  con- 
summate said  purchase  and  to  pay  said  Doe  $5,000  upon  re- 
ceiving from  him  a  deed  of  conveyance  of  said  premises. 

5.  Plaintiff,  relying  upon  said  advice  of  defendant,  on  Au- 
gust ist,  1911,  accepted  from  said  Doe,  a  deed  of  conveyance 
for  said  premises  and  paid  him  $5,000  for  the  same,  when  in 
fact  said  property  was  subject  to  the  said  mortgage. 

6.  Plaintiff,  in  order  to  free  said  premises  from  the  lien 
of  said  mortgage,  was  compelled  to  pay  the  holder  thereof  $2,- 
ooo  of  principal  and  $50  interest  on  December  ist,  1911. 

7.  Said  John  Doe  became  insolvent  in  or  about  the  month 
of  October,   1911,  and  before  plaintiff  had  notice  that  said 
property  was  subject  to  said  mortgage. 

Plaintiff  demands  as  damages,  $2,050  with  interest  from  De- 
cember ist,  1911. 

79.     Against  an  Agent  for  Money  Collected. 

1.  On  May  ist,  1912,  the  plaintiffs  authorized  the  defend- 
ant to  collect  and  receive  (state  character  of  the  collections, 
such  as,  notes,  policy  fees,  freight)  and  other  moneys  for  them, 
to  be  paid  to  them  when  collected,  deducting  his  reasonable 
charges  in  the  premises. 

2.  The  defendant,  as  such  agent,  received  and  collected  the 
several  sums  of  money  specified  in  Schedule  A  hereto  annexed, 
at  the  times  therein  stated,  which  sums  amounted  on  July  ist, 
1912,  to  $1,000. 

3.  After  the  defendant's  credits  are  deducted  he  owes  the 
plaintiffs  $950. 

4.  On  August  i.  1912,  the  plaintiffs  demanded  said  balance 
of  money  of  the  defendant. 


115  COMPLAINTS.  Perm  81 

5.     He  has  not  paid  the  same. 

The    plaintiffs    demand    as    damages,    $950    with    interest 
from 

80.  Against  an  Agent  for  Selling  Contrary  to  Orders. 

1.  During  the  months  of  March  and  April,  1912,  the  plain- 
tiff employed  the  defendant,  for  reward,  as  his  agent,  for  the 
sale  of  coal  in  Trenton. 

2.  The  defendant's  duty,  by  the  terms  of  said  employment, 
was  to  sell  the  coal  consigned  to  him  by  the  plaintiff  for  cash, 
or  upon  a  note  endorsed  by  a  third  party  as  security. 

3.  Between    March    loth   and   April    I5th,    1912,   plaintiff 
consigned  to  defendant,  in  various  lots,  500  tons  of  coal,  and 
defendant  received  the  same  as  such  agent. 

4.  On  April  I2th,  1912,  defendant,  in  breach  of  said  con- 
tract of  employment,  sold  100  tons  of  said  coal  to  John  Doe 
upon  a  credit  of  nine  months  without  taking  an  endorsed  note 
or  any  other  security  whatever  for  the  same. 

5.  Said  Doe  became  insolvent  within  one  month  after  said 
sale  and  did  not  pay  for  said  100  tons  of  coal  when  payment 
became  due.     Plaintiff  has  never  received  anything  in  payment 
for  the  same. 

Plaintiff  demands  as  damages,  $ with  interest 

from 

81.  Against  Del  Credere  Agent  on  His  Liability  as  Such, 
and,  in  the  Alternative,  for  Neglect. 

1.  On  February  1st,  1911,  plaintiffs  commenced,  and  down 
to  January  28th,  1912,  continued,  to  consign  to  defendant,  as 
their  agent,  large  quantities  of  their  flour  for  sale,  and  de- 
fendant sold  the  same. 

2.  On  February  3rd,   1912,  defendant  sold  50  barrels  of 
flour,  part  of  the  goods  so  consigned  to  him,  to  Richard  Roe 
for  $450  on  three  months  credit,  and  delivered  the  same  to  him. 

3.  Richard  Roe  was  at  that  time  insolvent;  and  defendant 
might,  by  ordinary  care  and  diligence,  have  ascertained  that 
fact. 

4.  Richard  Roe  did  not  pay  for  said  flour  at  the  expiration 
of  said  three  months,  and  was  then  and  ever  since  has  been  in- 
solvent.    The  plaintiffs  have  never  received  any  part  of  said 
sum  of  $450. 


Form  82  COMPLAINTS.  11G 

5.  No  express  agreement  was  ever  made  with  respect  to 
the  terms  of  defendant's  agency.     The  defendant  has  always 
charged  the  plaintiffs  a  commission  at  the  rate  of  commission 
ordinarily  charged  by  del  credere  agents  in  said  trade.     And 
defendant,  in  fact,  always  accounted  to  the  plaintiffs  for  the 
price,  whether  he  received  the  same  from  the  purchaser  or 
not. 

6.  Plaintiffs  insist  that  the  defendant  is  liable  to  them  as 
a  factor  to  sell  upon  a  del  credere  commission,  but  if  not  so 
liable,  that  he  is  liable  as  as  ordinary  agent. 

Plaintiffs  demand  as  damages,  $450  with  interest 
from 

XOTE:  This  form  is  from  tJie  Connecticut  Practice  Book 
(1908).  See  Rule  37  and  notes  to  Rules  36,  39. 

82.     Against  Sureties  for  Payment  of  Rent. 

1.  On  March  ist,  1911,  John  Doe,  by  agreement  in  writing 

with  plaintiff,  hired  of  him  the  building  No.  100 

Street,  Newark,  at  the  yearly  rent  of  $1,000  payable  quarterly 
on  the  first  days  of  (state  times  of  payment). 

2.  Defendant,  in  consideration  of  the  said  letting,  and  as 
security  for  the  punctual  payment  of  said  rent,  then  and  there 
signed  and  delivered  to  plaintiff,  a  written  agreement  a  copy 
of  which  is  hereto  annexed. 

3.  Said  Doe  made  default,  after  due  demand,  in  the  pay- 
ment of  $250  which  was  due  for  said  rent  on  June  ist,  1911, 
and  again  made  default,  after  due  demand,  in  the  payment  of 
$250  which  was  due  for  said  rent  on  September  ist,  1911. 

4.  Before  this  action,  on  November  ist,  1911,  plaintiff  gave 
to  defendant  due  notice  of  said  demand  and  non-payment,  and 
demanded  payment  of  defendant  of  said  sums. 

5.  Defendant  has  not  paid  said  sums  or  any  part  thereof. 
Plaintiff      claims      as      damages      $500      with      interest 

from . . 


117  COMPLAINTS.  Form  84 

83.  Against  Principal  and  Sureties,  on  Contract  for  Ser- 
vices. 

1.  Heretofore,  certain  articles'  of  agreement  were  signed 
and  sealed  by  plaintiff  and  defendant,  John  Doe,  dated  June 
i,  1911  of  which  a  copy  is  hereto  annexed,  marked  A. 

2.  On  the  same  day,  simultaneously  with  the  execution  of 
said  agreement,  and  in  consideration  thereof,  defendants  John 
Styles,  Richard  Roe,  and  James  Fen  signed  and  sealed  a  guar- 
antee, written  at  the  foot  of  said  agreement,  of  which  a  copy 
is  hereto  annexed,  marked  B. 

3.  On    April    ist,    1912,   plaintiff   had   performed    all   the 
conditions  of  said  contracts  on  his  part  and  was  entitled  to 
receive  from  said  Doe  upon  said  articles  of  agreement,  for 
work  done  by  plaintiff,  the  sum  of  $2,000. 

4.  On  the  last  named  day  said  Doe  refused  to  pay  that  sum 
and  has  never  paid  the  same  or  any  part  thereof,  although  he 
was  then  requested  to  pay  the  same. 

5.  On  the  last  mentioned  day,  the  other  defendants  had  due 
notice  of  said  demand  and  refusal. 

6.  The  defendants  have  wholly  failed  to  perform  said  con- 
tracts and  have  neglected  and  refused  to  pay  said  sum  of  $2,- 
ooo,  or  any  part  thereof. 

Plaintiff     demands     as     damages,     $2,000     with     interest 
from 

84.  On  an  Agreement  to  Answer  for  the  Price  of  Goods 
Sold  to  a  Third  Person. 

1.  On  Alay  ist,  1911,  defendant  promised  to  be  answerable 
to  plaintiff  for  the  payment  by  one  John  Styles  of  the  price  of 
any  goods  then  or  thereafter  to  be  sold  on  a  credit  of  three 
months,  by  plaintiff  to  said  Styles  (state  any  limitations  upon 
the  guarantee  according  to  the  facts}. 

2.  The  consideration  for  said  promise  was,  that  plaintiff,  at 
the  request  of  defendant,  would  then  and  thereafter  sell  to 
said  John  Styles,  on  a  credit  of  three  months,  such  goods  as 
said  Styles  should  desire  to  buy  of  plaintiff. 

3.  On  May  loth,  1911,  on  the  faith  of  said  guarantee,  plain- 
tiff sold  and  delivered  to  said  Styles  (describe  the  goods  brief- 
ly or  refer  to  a  list  annexed},  for  the  price  of  $500,  upon  a 
credit  of  three  months  from  that  day.  and  immediately  gave 
due  notice  thereof  to  defendant. 


Form  85  COMPLAINTS.  118 

4.  Payment  of  the  same,  was  demanded  from  said  Styles 
after  said  three  months  had  elapsed,  but  the  same  was  not  paid. 
Of  all  which  defendant  had  due  notice. 

5.  On  Sept.  ist,  1911,  payment  of  the  said  sum  was  de- 
manded by  plaintiff  of  defendant. 

6.  No  part  thereof  has  been  paid  except  $75  which  defend- 
ant paid  to  plaintiff  on  Sept.  6,  1911. 

Plaintiff     demands,     as     damages,     $425     with     interest 
from 

85.     By  Surety  (on  a  Lease)  Against  His  Principal. 

1.  On  May  ist,  1911,  defendant  and  one  John  Styles  exe- 
cuted a  lease  of  which  a  copy  is  annexed  marked  A. 

2.  At  the  request  of  defendant,  plaintiff  made  and  delivered 
to  defendant,  his  guarantee  thereof,  in  writing,  of  which  a 
copy  is  annexed,  marked  B. 

3.  Defendant   delivered   said   lease  and   guaranty   to   said 
Styles  and  thereby  obtained  possession  of  said  premises. 

4.  Defendant  failed  to  pay  $1,000  rent  under  said  lease 
which  became  due  Nov.  ist,  1911. 

5.  Plaintiff  by  his  guarantee  was  compelled  to  pay,  and  did 
pay,  on  January  loth,  1912  to  said  Styles  $1,025,  being  said 
sum  of  rent  with  interest  thereon. 

6.  Defendant  has  not  repaid  the  same  to  plaintiff  although 
requested  so  to  do. 

Plaintiff     demands,     as     damages,     $1,025     with     interest 
from . . 


119  COMPLAINTS.  Form  86 

86.     Plaintiffs    in    Alternative;    Action   Against    Common 
Carrier  for  Loss  of  Goods. 

(FROM  SCHEDULE  B.) 
Supreme  Court  of  New  Jersey. 

Hudson  County. 
A.  B.  and,  in  the  alternative,  C.  D., 

Plaintiffs, 


vs. 


Complaint. 


Erie  Railroad  Company, 

Defendant. 
Plaintiffs  (state  names  and  residences)  say  that: 

1.  The  plaintiff,  A.  B.,  being  a  manufacturer  of  silk,  doing 
business  in  Paterson,  on  January  i,  1912,  contracted  in  writing 
to  sell  ten  bales  of  silk  of  the  value  of  $1,000  to  the  plaintiff, 
C.  D.,  who  was  a  merchant  doing  business  in  Buffalo.    A  copy 
of  the  contract  is  hereto  annexed. 

2.  By  the  terms  of  said  contract,  A.  B.  agreed  to  ship  said 
goods  from  Paterson,  via  Erie  Railroad,  to  C.  D.,  at  Buffalo. 

3.  The  terms  of  the  contract  were  such  as  to  make  it  un- 
certain whether  the  title  to  the  goods  so  sold  passed  to  the 
buyer  on  delivery  of  the  goods  to  said  railroad  company  for 
transportation  at  Paterson,  or  on  delivery  of  said  goods  to  the 
buyer  at  Buffalo. 

4.  On  January  5th,  1912,  A.  B.  delivered  said  goods  to  the 
defendant  (being  then  a  common  carrier)  at  Paterson.     Said 
company  received  the  same  and  agreed,  in  consideration  of 
freight  charges  to  be  paid  on  delivery  of  the  goods,  to  trans- 
port and  deliver  them  to  C.  D.  at  Buffalo. 

5.  On  January  6th,   1912,  said  goods  were  destroyed  by 

fire  at while  in  possession  of  the  defendant  under 

said  agreement  of  transportation. 

6.  Plaintiff  claims  that  either  A.  B.  or,  in  the  alternative, 
C.  D.,  is  entitled  to  damages  from  the  defendant  for  loss  of 
said  goods. 

Plaintiffs,  in  the  alternative,  demand  $1,000  damages. 

Plaintiffs  pray  that  the  court  may  determine  which  one  of 
them  is  entitled,  under  the  contract  between  themselves  to  re- 
cover from  the  defendant. 

NOTE:  See  forms  of  judgment  on  this  complaint;  Forms 
299,  300. 


Form  87  COMPLAINTS.  120 

87.  Against  a  Carrier  for  Not  Delivering  in  a  Reasonable 
Time. 

1.  On  August  ist,  1912,  defendant  being  then  and  now  a 
corporation,  was  also  a  common  carrier  of  goods  between  New 
Brunswick  in  this  State  and  the  City  of  New  York  in  the  State 
of  New  York. 

2.  On  that  date,  plaintiff  delivered  to  defendant,  as  such 
common  carrier,  at  New  Brunswick,  one  carload  of  ripe  peaches 
of  the  value  of  $500  to  be  immediately  carried  to  plaintiff  at 
the  City  of  New  York  aforesaid,   for  reward,  and  defendant 
received  said  peaches  for  that  purpose. 

3.  Defendant,  in  violation  of  its  duty,  neglected  to  deliver 
said  peaches  to  plaintiff  for  six  days  after  defendant  received 
the  same ;  and  by  reason  of  said  negligence  of  defendant,  said 
peaches  decayed,  became  spoiled,  and  were  wholly  lost  to  plain- 
tiff. 

Plaintiff  demands  $500  damages. 

88.  Against  the  Same:  for  Loss  of  Baggage. 

1.  At  the  times  herein  stated  defendant  was  and  it  still  is  a 
corporation. 

2.  *On  May  ist,  1912,  defendant  was  also  a  common  carrier 
of  passengers  and  baggage  by  rail  between  Trenton  and  New 
York  City  in  the  State  of  New  York. 

3.  On  said  day,  plaintiff  at  Trenton,  became  a  passenger 
for  reward  on  a  train  of  cars  of  defendant  then  going  from 
Trenton  to  New  York  aforesaid,  and  as  such  passenger  deliv- 
ered to  defendant  three  trunks  containing  goods  and  clothes 
of  the  value  of  $200,  in  each  of  said  trunks,  being  his  reason- 
able baggage,  to  be  conveyed  on  said  train  as  his  baggage ;  and 
defendant  then  accepted  said  trunks  for  said  purpose. 

4.  Defendant    so    carelessly    and    negligently    carried    said 
trunks  and  their  contents  that  the  same,  through  the  careless- 
ness and  negligence  of  defendant,  were  wholly  lost  to  plain- 
tiff. 

Plaintiff  demands  $600  damages. 


121  COMPLAINTS.  Form  91 

89.  Against  a  Common  Carrier  for  Losing  Goods. 

1.  On  May  ist,  1912,  defendant  was  a  common  carrier  of 
goods  for  hire  from  Newark  to  Jersey  City. 

2.  On  that  day,  plaintiff  delivered  to  him  as  such  carrier, 
goods  of  plaintiff,  to  wit  (specify  goods  or  refer  to  than  as  at- 
tached in  a  schedule]  of  the  value  of  $500  to  be  carried,  for 
reward,  from  Newark  to- Jersey  City  and  there  to  be  delivered 
by  defendant  to  plaintiff. 

3.  Defendant  neglected  his  duty  and  did  not  safely  carry 
said  goods  from  Newark  to  Jersey  City,  nor  there  deliver  the 
same  to  the  plaintiff ;  but  by  default  of  defendant  in  the  prem- 
ises, said  goods  were  wholly  lost  to  plaintiff. 

Plaintiff  demands  $500  damages. 

90.  Against  an  Inn-Keeper,  for  Loss  of  Goods. 

1.  At  the  time  hereinmentioned  defendant  was  an  inn-keep- 
er and  kept  an  inn,  known  as  the  "Dale  House"  at 

2.  On  June  3,  1912,  the  plaintiff,  being  a  traveler,  was  re- 
ceived by  the  defendant  in  his  said  inn,  as  such,  for  reward, 
and  then  brought  into  said  inn  as  part  of  his  baggage  and 
committed  to  the  charge  of  the  defendant,  as  such  inn-keeper, 
a  trunk  containing  his  necessary  wearing  apparel '  and  other 
articles  reasonable  for  a  traveler  to  carry,  being  the  property 
of  plaintiff. 

3.  Said  trunk  continued  in  charge  of  defendant  in  said  inn, 
and  plaintiff  abode  there  as  a  traveler  until  the  loss  hereinafter 
mentioned. 

4.  Defendant,  in  violation  of  his  duty,  did  not  keep  said 
trunk  and  its  contents  safely,  and  on  June  loth,  1912,  the  same 
was,  through  his  neglect  and  default,  taken  away  by  some  per- 
son to  the  plaintiff  unknown,  and  has  never  been  returned. 

Plaintiff  demands  $500  damages. 

91.  On  a  Warehouse  Receipt;  by  Indorsee  Thereof. 

1.  Defendant,  on  January  loth,  1912,  was  a  warehouse  man 
and  kept  a  warehouse  in  Jersey  City. 

2.  On  that  day  he  received  from  John  Fen  of  Jersey  City 

100  barrels  of  flour  of  the  brand  of and  of  the 

value  of  $800,  and  gave  him  a  negotiable  warehouse  receipt 
therefor,  in  which  it  was  stated  that  said  goods  would  be  deliv- 


Form  92  COMPLAINTS.  122 

ered  to  him  or  his  order  (or,  a  copy  of  which  is  hereto  an- 
nexed). 

3.  Said  Fen  afterwards  indorsed  said  receipt  in  blank  to 
Richard  Roe  of  said  City. 

4.  On  July  ist,  1912,  said  Roe  delivered  it  to  plaintiff. 

5.  On  the  last  named  day,  plaintiff,  at  Jersey  City,  pre- 
sented said  receipt  to  defendant  and  demanded  of  defendant 
the  delivery  of  said  goods. 

6.  Said  presentation  and  demand  were  accompanied  with 
an  offer  to  satisfy  the  defendant's  lien  on  said  goods  and  to 
surrender  said  receipt  to  defendant,  and  plaintiff  was  then  and 
there  ready  and  willing  to  sign,  if  requested,  an  acknowledge- 
ment of  such  delivery  when  the  same  should  be  made. 

7.  Defendant  then  and  there  refused,  to  deliver  said  goods 
to  plaintiff  and  plaintiff  has  never  received  the  same. 

Plaintiff  demands  $1,000  damages. 

92.  On  a  Fire  Insurance  Policy. 

1.  Plaintiff  was  the  owner  of  a  dwelling  house  known  as 
No State  Street,  in  Trenton,  at  the  time  of  its  insur- 
ance, and  of  the  fire  herein  stated. 

2.  On  July  ist,  1911,  defendant  was,  and  still  is,  a  corpora- 
tion duly  incorporated,  with  power  to  insure  risks  by  fire. 

3.  On   that   day,   in   consideration   of   $ 

to  it  paid,  defendant  executed -to  plaintiff,  a  policy  of  insur- 
ance on  said  house,  a  copy  of  which  is  hereto  annexed. 

4.  On  March  ist,  1912,  said  house  was  totally  destroyed 
(or,  greatly  damaged),  by  fire. 

5.  Plaintiff's  loss  thereby  was  $3,000. 

6.  On   April    i,    1912,   plaintiff   furnished   defendant  with 
proof  of  his  loss  and  interest  in  said  property,  and  otherwise 
duly  performed  all  the  conditions  of  said  policy  on  his  part. 

7.  Defendant  has  not  paid  said  loss. 
Plaintiff  demands  $3,500  damages. 

93.  On  a  Life  Insurance  Policy ;  by  Executor. 

1.  (State  incorporation   and  business  of  defendant  as   in 
preceding  form.) 

2.  On  October   i,   1905,  in  consideration  of  the  payment 
to  defendant  by  one  John  Stiles,  deceased,  late  of  Trenton, 


123  COMPLAINTS.  Form  94 

of  a  premium  of  $100  and  of  like  sum  to  be  paid  to  it,  by  him, 
annually  during  his  life,  defendant  made  its  policy  of  insur- 
ance in  writing,  a  copy  of  which  is  annexed  hereto,  and  there- 
by insuring  the  life  of  said  Stiles  in  the  sum  of  $5,000. 

3.  On  June   ist,   1912,  said  Stiles  died.      (Shoiv  tliat  his 
death  zvas  not  the  result  of  any  cause  e-.vcepted  in  said  policy.) 

4.  Said  Stiles  left  a  will  by  which  plaintiff  was  appointed 
executor  and  on  June  I5th,  1912,  said  will  was  admitted  to 
probate  by  the  Surrogate  of  Mercer  County  and  letters  testa- 
mentary thereon  were  issued  to  plaintiff. 

5.  Said  Stiles  duly  performed  all  the  conditions  of  said 
contract  of  insurance  on  his  part  and,  till  his  death,  annually 
paid  said  premium. 

6.  Plaintiff  made  due  proof  of  the  death  of  said  Stiles  to 
the  defendant  in   accordance   with   the   requirements   of   said 
policy  on  June  2Oth,  1912,  and  otherwise  performed  all  condi- 
tions of  said  policy  on  his  part. 

7.  The  amount  of  said  insurance  has  not  been  paid. 
Plaintiff,   as   executor,    demands    as    damages,   $5,000   with 

interest  from 

94.     Against  a  Builder  for  Defective  Work. 

1.  On  November  i,  1911,  plaintiff  and  defendant  executed 
an  agreement,  whereby  defendant  agreed  to  construct  for  plain- 
tiff in  a  workmanlike  manner  and  of  first  class  material,  a 

building  on street  in  Newark,  for  the 

sum  of  $20,000.    A  copy  of  said  agreement  is  hereto  annexed. 

2.  Plaintiff  has  duly  performed  all  of  the  conditions  of  the 
agreement  on  his  part. 

3.  Defendant    constructed    said    building   in    so    unskillful 
and  unworkmanlike  a  manner  and  of  such  inferior  material 
that,  shortly  after  its  completion,  the  foundation  settled,  the 
walls  cracked,  the  roof  and  walls  became  leaky,  a  considerable 
portion  of  the  plastering  fell  and  the  house  otherwise  was,  and 
is,  nearly  useless,  because  of  the  inferior  material  and  the  un- 
workmanlike and  unskillful  manner  used  in  its  construction 
by  the  defendant. 

Plaintiff  demands  $5,000  damages. 


Form  95  COMPLAINTS.  l:.'4 

95.  Against  a   Builder  for  Not   Completing   His  Work; 
Special  Damage  for  Loss  of  Rent. 

1.  On  February  1st,  1912,  plaintiff  and  defendant  execu- 
ted a  written  contract,  a  copy  of  which  is  hereto  annexed. 
(It  is  optional  to  state  the  substance  of  the  contract,  thus:} 
Whereby  defendant  agreed  to  erect  a  three-story  brick  dwell- 
ing house  in  Trenton  and  to  have  the  same  completed  and 
ready  for  occupancy  on  August  ist,  1912;  for  which  plaintiff 
agreed  to  pay  $8,000  in  installments  as  the  work  progressed, 
viz.,  $2,000  when  the  foundation  should  be  laid ;  $3,000  when 
the  walls  should  be  built  and  the  roof  put  on;  $2,000  when 
the  house  was  entirely  completed  and  the  balance  sixty  days 
after  the  house  was  completed. 

2.  Plaintiff  duly  performed  all  the  conditions  of  said  con- 
tract upon  his  part. 

3.  Defendant  entered  upon  the  performance  of  the  work 
under  said  contract  and  laid  the   foundation   of   said   house 
and  finished  the  building  of  the  walls,  but  has  not  put  on  the 
roof  and  has  not  completed   said  building.     He  has  entirely 
abandoned  work  upon  the  building  and  refuses  to  complete 
the  same.     The  time  for  the  completion  of  said  building  ex- 
pired before  this  action  was  begun. 

4.  On  March   i,   1912,  plaintiff  made  an  agreement  with 
John  Stiles,  whereby  he  agreed  to  let  and  said  John  Stiles 
agreed  to  hire,  said  building  for  one  year  from  September  I, 
1912,  at  the  yearly  rent  of  $800,  of  which  defendant  had  due 
notice. 

5.  By  reason  of  defendant's  failure  to  complete  the  con- 
tract  upon   his    part,    plaintiff   has    been    unable   to   complete 
said  house,  so  as  to  give  John  Stiles  occupancy  thereof,  and 
has  been  thereby  deprived  of  the  profits  of  said  lease  and  has 
been  otherwise  greatly  injured. 

Plaintiff  demands  $5,000  damages. 

96.  By  Builder,  on  a  Written  Contract  Modified  by  Parol, 
with  Claim  for  Extra  Work. 

First  Count. 

i.  On  June  i,  1911,  plaintiff  and  defendant  executed  a 
written  contract,  whereby  plaintiff  agreed  to  construct  a 
building  for  the  plaintiff  in  the  City  of  Newark  of  the  kind 
and  upon  the  terms  mentioned  in  said  contract. 


125  COMPLAINTS.  Form  96 

2..  Thereafter  and  before  March  1st,  1912,  plaintiff  duly 
performed  all  the  conditions  of  the  contract  on  his  part,  ex- 
cept that,  at  the  request  of.  defendant,  he  covered  the  roof 
of  the  building  in  the  contract  mentioned  .with  slate  instead 
of  -shingles,  for  which  defendant  promised  to  pay  a  reasonable 
sum  in  addition  to  the  price  named  in  said  contract ;  and  also 
except  that,  at  the  like  request,  he  omitted  to  put  blinds  upon 
the  rear  windows  of  the  building  upon  an  agreement  with 
defendant  that  a  reasonable  deduction  should  be  made  from  the 
price  named  in  said  contract  for  said  omission ;  and  also  ex- 
cept that,  by  consent  of  defendant,  the  time  for  completing 
said  work  was  extended  for  one  month  after  the  day  named 
in  said  contract,  to  wit,  February  i,  1912,  within  which  ex- 
tended time  the  whole  of  said  work  was  completed  by  plain- 
tiff. 

3.  A   reasonable  payment  to  be  made  in  addition  to  the 
price  named  in  said  contract  for  covering  said  roof  with  slate 
instead  of  shingles  is  $250. 

4.  A    reasonable   deduction    to    be   made    from    the    price 
named  in  said  contract  for  the  omission  to  put  blinds  upon 
said  building  as  above  stated  is  $50. 

5.  On  April  ist,  1912,  plaintiff  duly  demanded  of  defend- 
ant the  payment   of  $1,200,   being   the  balance   due   on   said 
contract  after  making  the  aforesaid  allowance  and  deduction. 

6.  No  part  of  said  sum  so  demanded  has  been  paid. 
Second  Count. 

1.  Between  January  ist  and  March  ist,  1912,  plaintiff,  at 
the  request  of  defendant,  rendered  further  services,  and  fur- 
nished  further  material  to  the  defendant  in  building  certain 
fences  and  out-buildings  and  in  work  upon  the  grounds  around 
the  aforesaid  house,  particulars  of  which  are  annexed  hereto 
in  Schedule  A ;  for  which  defendant  promised  to  pay  so  much 
as  said  services  and  materials  should  be  reasonably  worth. 

2.  The  same  are  reasonably  worth  $500,  which  sum  became 
due  for  the  same  on  April  ist,  1912. 

3.  Neither  said  sum  nor  any  part  thereof  has  been  paid. 
Plaintiff  demands  as  damages  on  the  first  count,  $1,200; 

on  the  second  count,  $500;  with  interest  on  both  sums  from 
April  i,  1912. 


Form  97  COMPLAINTS.  126 

97.  For  Salary. 

(FROM  SCHEDULE  B.) 

1.  On  July  i,  1910,  defendant  hired  plaintiff  as  a  salesman 
at  a  salary  of  $1,000  per  year,  payable  quarterly. 

2.  From  that  day  until  July  i,  1911,  plaintiff  served  defend- 
ant as  such  salesman. 

3.  Defendant  has  paid  on  account  of  said  salary  only  $500, 
leaving  due  a  balance  of  $500. 

Plaintiff  claims  as  damages  $500  with  interest  from 

98.  For  Rent. 

(FROM  SCHEDULE  B.) 
First  Count. 

1.  On  January  i,   1911,  plaintiff  and  defendant  executed 

a  lease  (under  seal)  of  the  premises  No.  20 

street,  Trenton,  of  which  a  copy  is  annexed  hereto. 

2.  A  half  year's  rent  of  $200  due  July  i,  1911,  is  unpaid. 
Plaintiff  demands,  etc. 

99.  By  Purchaser  of    a    Business    Against    a    Seller    for 
Breach  of  Covenant  Not  to  Compete. 

(FROM  SCHEDULE  B.) 

1.  On  July    i,    1910,   defendant   was   a   physician   practic- 
ing in  the  town  of ,  and  plaintiff  was  also 

a  physician. 

2.  On  that  day,  in  consideration  that  plaintiff  would  pur- 
chase of  defendant  the  good-will  of  his  practice  for  $1,000, 
he   agreed    with    plaintiff    that    he    would    not    practice  medi- 
cine or  in  any  manner  do  business  as  a  physician  in  said  town 
for  a  period  of  ten  years  after  that  date. 

3.  Plaintiff   on    that    day    purchased    from    defendant    the 
good-will  of  his  practice  for  the  price  and  on  the  terms  afore- 
said. 

4.  Plaintiff,  on  or  about  that  time,  opened,  and  has  since 
maintained  an  office  in  said  town,  as  a  practicing  physician. 

5.  Defendant,  in  violation  of  said  agreement,  on  January 
i,  1912,  opened  an  office  in  said  town,  and  commenced,,  and 
still  continues,  to  practice  medicine,  and  do  business  as  a  physi- 
cian in  said  town. 


127  COMPLAINTS.  Form  101 

6.     Plaintiff's  professional  income  has  been  lessened  thereby. 
Plaintiff  demands  $5,000  damages. 

100.  Against  a  Note  Broker  for  Proceeds  of  Note  Dis- 
counted. 

1.  On  May  ist,  1912,  plaintiff  employed  defendant  to  sell, 
or  procure  to  be  discounted,  a  note  of  plaintiff  (describe  note) 
a  copy  of  which  is  hereto  annexed. 

2.  Thereafter  and  before  June   ist,   1912,  defendant  pro- 
cured said  note  to  be  discounted  by  one  John  Doe  and  received 
$900  as  proceeds  thereof. 

3.  Defendant's   just  charges   and   commissions   amount   to 
$45  and  no  more. 

4.  Plaintiff,  on  June   5th,   1912,   duly  demanded  payment 
of  the  balance,  being  $855. 

5.  Defendant  has  never  paid  the  same. 

Plaintiff  demands  as  damages,  $855  with  interest  from.  .  .  . 

101.  Against  an  Auctioneer  for  Not  Accounting. 

1.  On  March   ist,   1912,  defendant  was,  and  at  all  times 
since  has  been,  carrying  on  the  business  of  an  auctioneer. 

2.  On  that  day,  plaintiff  delivered  to  defendant  as  such 
auctioneer,  twenty  oil  paintings,  being  the  property  of  plain- 
tiff, to  be  sold  by  defendant  at  public  auction  for  plaintiff  and 
defendant  received  the  same  for  that  purpose. 

3.  On  April   ist,    1912,  defendant  sold  said  paintings  at 
public  auction  for  plaintiff  for  divers  sums  of  money,  amount- 
ing in  the  whole  to  $1,000  or  thereabouts. 

4.  Defendant  afterwards,  and  before  this  action  was  be- 
gun received  payment  for  the  paintings  so  sold. 

5.  Sufficient  time  has  elapsed  in  which  defendant  could 
have  accounted  for  the  proceeds  of  said  sale;  yet  defendant, 
in  violation  of  his  duty,  has  neglected  and  refused  and  still 
neglects  and  refuses  to  render  to  plaintiff  an  account  of  said 
sale  and  of  the  proceeds  thereof  and  to  pay  such  proceeds  to 
plaintiff. 

Plaintiff  demands  $1,200  damages. 

NOTE:  When  the  precise  amount  of  principal  due  is  not 
known,  the  damages  should  be  alleged  at  a  round  sum  sufficient 
to  cover  it. 


Form  102  COMPLAINTS.  128 

102.  On  an  Award. 

1.  On  January    10,   1912,  plaintiff  and   defendant,  having 
then  a  controversy   between   them   concerning  a  demand   of 
plaintiff  for  the  price  of  a  carload  of  lumber  which  defendant 
refused  to  pay,  agreed  to  submit  the  controversy  to  the  award 
of  A.  B.  and  C.  D.  as  arbitrators  (or,  entered  into  an  agree- 
ment, a  copy  of  which  is  hereto  annexed,  marked  Schedule  A, 
whereby  they  agreed  to  submit  the  controversy  to  the  award  of 
A.  B.  and  C.  D.  as  arbitrators). 

2.  On    February    ist,    1912,   said   arbitrators,   pursuant   to 
said  submission,  awarded  that  the  defendant  should  pay  plain- 
tiff $800,  and  duly  published  said  award. 

3.  Defendant  has  not  paid  the  same  or  any  part  thereof. 

4.  Plajntiff    demands    as    damages,    $800    with    interest 
from 

103.  Quantum  Meruit  for  Hire  of  a  Piano,  with  Damages 
for  Converting  It. 

First  Count. 

1.  On  November  i,  1911,  defendant  hired  of  plaintiff  for 
six  months  then  next  ensuing,  one  piano,  being  the  property 
of  plaintiff,  to  be  returned  to  plaintiff,  at  the  expiration  of 
said  time,  in  good  condition,  reasonable  wear  excepted ;  for 
the  use  of  which  he  promised  to  pay  plaintiff  a  reasonable  sum. 

2.  A  reasonable  sum  for  the  hire  of  the  same   for  said 
period  was  $50,  which  sum,  on  May  ist,   1912,  became  due 
from  defendant  to  plaintiff  for  said  hire. 

3.  No  part  of  said  sum  has  been  paid  (except  the  sum  of 
$10). 

Second  Court. 

1.  The  statements  in  paragraph   i   of  the  first  count  are 
made  part  of  this  count. 

2.  The  value  of  the  piano  so  hired  by  defendant  was  $500. 

3.  Defendant  not  regarding  his  said  undertaking  to  return 
the  piano  to  plaintiff,  has  not  returned  the  same  although  he 
was  on  May  loth,  1912,  requested  by  plaintiff  to  do  so. 

Plaintiff  demands  as  damages,  $50  with  interest  from  May 
i.  1912,  on  the  first  count;  $500  on  the  second  count. 


129  COMPLAINTS.  Form  io< 

104.  On   Special   Contract   for   Hire   of   Furniture,   with 
Damages  for  Injury  to  It. 

First  Count. 

1.  On  May   ist,   1911,  in  Trenton,  defendant  hired  from 
plaintiff  certain  household  furniture,  plate,  and  books,  being 
the  property  of  plaintiff,  to  wit  (describe  the  articles  or  refer 
to  a  schedule  annexed  in  which  they  are  described)   for  one 
year  then  next  ensuing,  to  be  returned  by  him  to  plaintiff  at 
the  expiration  of  said  time,  in  good  condition  reasonable  wear 
and  tear  thereof  excepted. 

2.  Defendant  promised  to  pay  plaintiff  for  the  use  thereof 
$600   (in  equal  quarterly  payments  in  advance  on  the  first 
days  of  May,  August,  November  and  February). 

3.  Xo  part  of  said  sum  has  been  paid  (except  the  sum  of 
$150). 

Second  Count. 

1.  All  the  statements  in  the  first  count  are  made  part  of 
this  count. 

2.  The  value  of  the  property  so  hired  by  defendant  was 
$5,000. 

3.  Defendant  took  so  little  care  thereof,  that  through  his 
negligence,  carelessness  and  ill  use,  the  same  became  broken, 
defaced  and  damaged  to  the  amount  of  $500  beyond  the  rea- 
sonable wear  thereof,  and  in  that  condition  it  was  returned  to 
the  plaintiff. 

Plaintiff  demands  as  damages: 

On  the  first  count  $450  with  interest  from 

On  the  second  count  $500. 

105.  For  Breach  of  Promise  of  Marriage. 

1.  On  June  i,  1911,  in  consideration  that  plaintiff,  who  was 
then  unmarried,  promised,  at  the  request  of  the  defendant,  to 
marry  him  \\ithin  a  reasonable  time,  the  defendant  promised 
to  marry  the  plaintiff  within  a  reasonable  time. 

2.  The  plaintiff,  confiding  in  said  promise,  has  always  since 
remained,  and  is  now,  ready  and  willing  to  marry  defendant. 

3.  The  defendant  refuses  to  marry  the  plaintiff,  although 
a  reasonable  time  elapsed  before  this  action  was  begun,  and 
although  she  on  July  ist,  1912  requested  him  to  do  so. 

Plaintiff  demands  $5,000  damages. 


Form  106  COMPLAINTS.  130 

106.     For  Demurrage,  and  Damages  in  the  Nature  of  De- 
murrage. 
First  Count. 

1.  On  May  ist,  1912,  plaintiff  and  defendant  signed  a  char- 
ter-party for  the  hire  of  the  schooner  "Starlight,"  a  copy  of 
which  is  hereto  annexed. 

2.  Plaintiff  duly  performed  all  the  terms  and  conditions 
thereof  on  his  part. 

3.  Defendant  kept  the  schooner  on  demurrage  nine  days 
over  and  above  the  periods  agreed  upon  for  loading  and  dis- 
charging in  said  charter-party. 

4.  Said  demurrage  has  not  been  paid. 

Second  Court. 

1.  All  the  statements  of  the  first  two  paragraphs  of  the 
first  count  are  made  part  of  this  count. 

2.  Defendant  also  detained  the  schooner  four  days  beyond 
the  periods  agreed  upon  in  said  charter-party,  for  loading,  dis- 
charging,  and   demurrage,  whereby  the  plaintiff,   during  all 
that  time,  was  deprived  of  the  use  of  the  ship  and  incurred 
$100  expense  in  keeping  the  same  and  maintaining  the  crew, 

3.  A  reasonable  compensation  for  such  detention  and  ex- 
pense is  $40  a  day. 

Plaintiff  demands  as  damages,  on  the  first  count  $ , 

and  on  the  second  count  $ 

107.     On  a  Guaranty  of  a  Precedent  Debt. 

1.  On  April  i,  1912,  one  John  Stiles  was  indebted  to  plain- 
tiff in  the  sum  of  $1,000  which  was  then  due  and  payable. 

2.  In  consideration  of  forbearance  for  sixty  days  of  suit 
by  plaintiff,  against  said  Stiles,  to  recover  said  debt,  defend- 
ant signed  and  delivered  to  plaintiff  a  note  or  memorandum  of 
which  the  following  is  a  copy  (copy  the  guaranty). 

3.  Plaintiff  performed  all  the  terms  and  conditions  of  said 
contract  on  his  part  and  $1,000  is  now  due  to  him  thereon  from 
the  defendant  and  is  unpaid. 

Plaintiff     demands     as     damages,     $1,000     with     interest 
from . . 


131  COMPLAINTS.  Form  109 

108.  Upon  a  Promise  Made  to  a  Third  Person,  to  Pay 
Money  to  Plaintiff ;  Making  the  Former  a  Defendant. 

1.  On  May  i,  1911,  one  John  Stiles,  was  and  ever  since 
has  been,  indebted  to  plaintiff  in  the  sum  of  $2,000. 

2.  On  that  day,  said  Stiles  being  holder  of  a  bill  of  ex- 
change for  the  sum  of  $1,000  (describe  it  or  refer  to  copy  at- 
tached}  endorsed  and  delivered  it  to  defendant,  Jacob  Doe ; 
in  consideration  of  which,  said  Doe  then  and  there  promised 
said  Stiles  that  he  would  endeavor  to  collect  the  same,  and 
that  when  collected,  he  would  apply  the  proceeds  in  payment 
of  said  indebtedness  of  John  Stiles  to  plaintiff;  of  all  which 
said  Stiles  on  said  day,  gave  notice  to  plaintiff. 

3.  Afterwards^  on  October   ist,   1911,  said  Doe  collected 
said  bill. 

4.  Said  Doe  has  not  applied  any  part  of  the  proceeds  of 
said  bill  in  payment  of  said  indebtedness,  but  still  retains  the 
same. 

5.  Said  Stiles  was  asked  by  plaintiffs  before  this  action,  to 
join  as  a  co-plaintiff  herein,  but  declined  to  do  so,  for  which 
reason  he  is  made  a  defendant. 

Plaintiff  demands,  of  Jacob  Doe  as  damages,  $1,000  with  in- 
terest from  October  i,  1911. 

109.  By  Advertising  Agent  for  Services  and   Disburse- 
ments. 

1.  Between  June   ist  and  July  ist,  1912,  plaintiff,  at  de- 
fendant's request,  caused  advertisements  of  defendant's  busi- 
ness to  be  inserted  in  the  following  named  newspapers  and 
periodical :     (state  names  of  papers,  or  annex  and  refer  to  a 
list}. 

2.  Plaintiff,  for  such  insertions,  for  the  use  of  the  defend- 
ant and  at  his  request,  paid  out  (and  incurred  liability  to  pay) 
the  sum  of  $1,000. 

3.  Plaintiff's  services  in  the  said  matter  were  reasonably 
worth  $200,  which  sum,  with  the  amount  of  said  disbursements, 
became  due  on  July  ist,  1912. 

4.  The  same  has  not  been  paid  (except  the  sum  of  $ ). 

Plaintiff  demands  as  damages  $ ,  etc. 


Form  no  COMPLAINTS.  £32 

110.  By  Employee,  for  Wrongful  Dismissal  from  Service, 
i.     On  July  i,  1911.  defendant  employed  plaintiff  as  superin- 
tendent of  defendant's  factory,  at  Paterson,  for  the  period  of 
one  year  from  that  day,  at  the  salary  of  $2,400,  payable  monthly ; 
and  plaintiff  accepted  said  employment  and  continued  therein 
from  that  time  until  the  dismissal  herein  stated. 

2..  Defendant,  on  March  i,  1912,  before  the  expiration  of 
said  year  and  while  plaintiff  was  so  continuing  said  service, 
wrongfully  dismissed  him  from  the  same. 

3.  Plaintiff  was  at  all  times  ready  and  willing  to  continue 
in  said  service  until  the  expiration  of  said  year,  and  at  all 
times  until  said  dismissal,  faithfully  performed  his  duties  as 
such  superintendent,  and  performed  all  the  -terms  and  condi- 
tions of  the  contract  of  employment  on  his  part. 

4.  Because  of  said  wrongful  dismissal  plaintiff  has  been  de- 
prived of  his  salary  which  he  would  have  received  from  being 
retained   in   said   service,   and   he   remained    for   a   long   time 
unemployed. 

5.  No  part  of  plaintiff's  salary  to  which  he  was  entitled 
from  March   ist,  to  July  ist,   1912  under  the  terms  of  said 
employment,  has  been  paid. 

Plaintiff  demands,  as  damages,  $800  with  interest 'on  the 
unpaid  instalments  of  salary,  from  the  time  when  each  fell  due. 

111.  For  Board  and  Lodging. 

1.  From  January  ist  to  July  ist,  1912,  without  any  special 
agreement,  defendant  with  his  family  at  his  request,  occupied 
certain  rooms  in  the  house   of  the   plaintiff.   No.    100  State 

street,  in  the  City  of ,  as  a  boarder,  and 

was  furnished  by  plaintiff,  at  defendant's  request,  with  food, 
attendance  and  other  necessaries. 

2.  The  same  were  reasonably  worth  $600. 

3.  The  defendant  has  not  paid  for  the  same  nor  for  any 
part  thereof. 

Plaintiff  demands  as  damages  $600  with  interest  from 


133  COMPLAINTS.  Form  114 

112.  For  Contribution. 

1.  On  May  1st,   1912,  plaintiff  and  defendant,  made  and 
delivered  to  John  Doe,  their  promissory  note  for  $2,000,  of 
which  a  copy  is  annexed  hereto. 

2.  At  the  maturity  of  said  note,  plaintiff  was  compelled 
to  pay  and  did  pay  the  whole  amount  due  thereon. 

3.  Defendant  has  paid  nothing  upon  said  note.     His  con- 
tributive  share  thereof  is  $1,000. 

4.  On  September  ist,  1912,  plaintiff  demanded  of  defend- 
ant said  sum,  or  contributive  share  of  $1,000,  which  defend- 
ant refused  to  pay  and  no  part  thereof  has  been  paid  to  plain- 
tiff. 

Plaintiff  demands  as  damages  $1,000  with  interest  from.  . .  . 

113.  Against  a  Husband  for  Necessaries  Supplied  to  His 
Wife,  Without  His  Request. 

1.  On  May  ist,  1912,  sundry  goods,  described  in  the  list 
hereto  annexed,  were  necessary  for  the  use  of  Sarah  Doe,  then 
being  the  wife  of  defendant. 

2.  Defendant  neglected  to  supply  her  with  -said  goods  or 
any  of  them. 

3.  On  that  day,  at  her  request,  plaintiff  supplied  her  with 
said  goods  on  account  of  her  husband,  but  for  her  use  and 
consumption. 

4.  Said  goods  were  reasonably  worth  $200. 

5.  Plaintiff  has   demanded  payment   of  the   same  of   de- 
fendant, who  refused  and  still  refuses  to  pay  for  the  same. 

Plaintiff  demands  as  damages,  $200  with  interest  from .... 

114.  On  Mechanic's  Lien :    Against  Owner:    No  Contract 
Being  Filed,  or  When  the  Work  or  Materials  are 
Not  Covered  by  the  Contract :    Prices  Agreed  On. 

1.  At  the  times  hereinafter  stated,  defendant  was  the  owner 
of  a  plot  of  land  upon  which  he  was  then  constructing  a  cer- 
tain building,  which  land  is  described  as  follows  (describe  the 
land). 

2.  On  March  ist,  1912   (or,  between  March  ist  and  May 
loth,    1912),    plaintiff    sold    and    delivered    to    defendant    the 
materials   (or,  performed  labor  as  a  carpenter),  as  stated  in 
Schedule  A  hereto  annexed,  and  defendant  then  in  considera- 


Form  115  COMPLAINTS.  134 

tion  thereof  expressly  agreed  to  pay  plaintiff  the  prices  for 
said  goods  respectively  (or,  to  pay  plaintiff  for  said  labor  at 
the  rate)  stated  in  said  schedule,  amounting  in  the  whole  to 
the  sum  of  $1,000. 

3.  Said  materials  were  furnished  to,  and  used  by,  defend- 
ant in  (or,  said  labor  was  performed  in)   the  construction  of 
said  building. 

4.  Defendant  has  not  paid  the  said  sum  or  any  part  there- 
of (except  $ )  and  the  whole  (or,  the  balance)  of  said 

sum  is  still  due  and  unpaid. 

5.  Said  debt  is  a  lien  upon  said  building  and  land  by  virtue 
of  the  provisions  of  the  act  entitled  "An  Act  to  secure  to 
mechanics  and  others  payment  for  their  labor  and  materials 
in  erecting  any  building." 

Plaintiff  demands,  as  damages,  $1,000  with  interest  from 


NOTE:  The  amendment  made  by  Chap.  265,  Lazvs  of  1912, 
to  the  Mechanics'  Lien  Act,  directing  the  complaint  to  be  an- 
nexed to  the  summons,  makes  impossible  the  recitals  in  the 
complaint,  that  the  defendants  zvere  summoned,  and  how  they 
were  served,  as  Jmd  been  required  by  Sec.  24  of  the  Act.  The 
latter  provisions  are  repealed  by  necessary  implication. 

115.     The  Same,  When  There  was  No  Express  Promise,  or 
When  the  Prices  Were  Not  Agreed  Upon. 

1.  (Follow  paragraph  i  of  Form  114.) 

2.  On  March  ist,  1912,  (or,  between  March  ist  and  May 
loth,   1912),  plaintiff,  at  request  of  defendant,  sold  and  de- 
livered to  defendant  the  materials  (or,  performed  labor  as  a 
carpenter,  as)  stated  in  Schedule  A  hereto  annexed;  and  de- 
fendant then,  in  consideration  thereof  undertook  to  pay  plain- 
tiff what  the  same  were  reasonably  worth. 

3.  The  same  were  reasonably  worth  $1,000. 
(Continue  as  in  Form  114,  Sec.  3,  et  seq.) 


135  COMPLAINTS.  Form  118 

116.  Mechanic's  Lien;  When  a  Mortgagee  is  Made  a  Party 
Defendant. 

James  Fen  is  made  a  party  defendant,  because  he  holds  a 
mortgage  of  record  upon  said  land,  dated  June  ist,  1910,  re- 
corded in  Book of  Mortgages  for  Hudson  County 

on  page to  secure  the  sum  of  $2,000,  which  mortgage 

will  be  cut  off  by  a  sale  under  plaintiff's  said  claim. 

117.  On  Mechanic's  Lien:    Against  the  Builder  (Contrac- 
tor) and  the  Owner :    Contract  Not  Filed. 

1.  At  the  times  herein  stated,   defendant  John   Doe  was 
the  owner  of  a  plot  of  land  upon  which  he  was  then  about 
to  construct  a  certain  building:   which  land  is  described  as 
follows  (insert  description). 

2.  On  May  ist,  1912,  defendant  Richard  Roe  (hereinafter 
called  "the  contractor")  contracted  in  writing  with  said  Doe 
to  construct  (or,  to  do  all  the  mason  work  in  the  construction 
of)  a  building  then  to  be  erected  on  said  land. 

3.  Said  written  contract  was  not  filed  in  accordance  with 
the  provisions  of  the  Act  hereinafter  mentioned. 

4.  On  May  2Oth,  1912   (or  between  May  2Oth  and  June 
loth,  1912)  plaintiff  sold  and  delivered  to  said  contractor  the 
materials    (or,   performed   labor   as    a   carpenter,   as)    stated 
in  Schedule  A  hereto  annexed,  and  said  contractor  then  (etc., 
continue  as  in  Form  114  or  115). 

118.  On  Mechanic's  Lien:    By  Contractor  Against  Owner. 

1.  (Same  as  paragraph  one,  Form  117.) 

2.  On  March   1st,   1912,  plaintiff  and  defendant  executed 
an  agreement  for  the  construction  (or,  if  for  alterations  or  re- 
pairs, state  according  to  the  facts)  of  a  building  on  said  land, 
a  copy  of  which  is  hereto  annexed. 

3.  On  May  ist,  1912,  plaintiff  finished  the  construction  of 
said  building,  and  by  the  terms  of  said  contract,  a  payment 
-of  $2,000  then  became  due  from  defendant  to  plaintiff. 

4.  Defendant  has  not  paid  the  same  or  any  part  thereof. 

5.  Plaintiff  has  performed  all  the  terms  and  conditions  of 
said  contract  on  his  part. 

6.  (Alleged  lien  as  in  Form  114,  paragraph  5.) 
Plaintiff  demands,  as   damages  $2,000  with   interest   from 


Form  1 19  COMPLAINTS.  136 

119.     Mechanic's  Lien  Act:    Against  Owner,  on  a  Stop- 
Notice. 

1.  At    the    times    hereinafter    stated,    defendant    was    the 
owner  of  a  plot  of  land  upon  which  he  was  then  constructing 

a  certain  building,  situate  on street  in  the  City 

of ( describe  the  property  by  street 

number  or  otherzvise}. 

2.  On  March   ist,   1912,  the  defendant  and  Richard  Roe, 
hereinafter   called   "the   contractor,"   executed   a   contract    for 
the  construction   (or,  alterations  or  repairs)   of  a  building  on 
said  land,  a  copy  of  which  is  hereto  annexed,  marked  A. 

3.  On  March  5th,   1912,  said  contract,  together  with  the 
specifications  therein  referred  to,  were  duly  filed  in  the  office 
of  the  Clerk  of County. 

4.  Afterwards,  on  March  loth,  1912  (etc.,  as  in  Form  114 
or  115,  alleging  that  the  labor  was  performed  for,  or  the  ma- 
terials sold  to,  the  contractor). 

5.  (Follow  Form   114,  paragraph  3.) 

6.  (Follow'  Form  114,  paragraph  4.) 

7.  On  April  2Oth,   1912,  plaintiff  demanded   said   sum   of 
$ of  said  contractor   and    said   contractor   then   re- 
fused and  ever  since  has  refused  to  pay  or  settle  the  same. 

8.  On  May   ist,   1912,  plaintiff  gave  defendant  notice,   in 
writing   (a  copy  of  which  is  hereto  annexed  marked   B)    of 
said  demand  and  refusal  and  of  the  amount  aforesaid  due  to 
plaintiff. 

9.  Defendant  was>  at  the  last  stated  day,  and  ever  since 
has  been,  satisfied  of  the  correctness  of  said  demand  of  plain- 
tiff. 

10.  On  May  loth,  1912,  there  fell  due  from  the  defendant 
to  the  contractor,  according  to  terms  of  said  contract,  the  sum 

of  $ (or,   a   sum  of  money  more  than   sufficient 

to  satisfy  plaintiff's  said  demand.) 

11.  On  the  last  mentioned  day,   said  contractor  had  duly 
performed  ^all  the  terms  and  conditions  of  said  contract  upon 
his  part. 

12.  Defendant  has  not  paid  said  sum  so  due  to,  and  de- 
manded by,  plaintiff. 

Plaintiff  demands,  as  damages,  $ with  interest 

from . . 


137  COMPLAINTS.  Form  121 

120.     Mechanic's  Lien:     Against  Owner  on  Stop  Notice, 
Where  Owner  Has  Paid  Contractor  in  Advance  of 
the  Terms  of  the  Contract. 
(Follow  Form  119  to  paragraph  9  inclusive.} 

10.  Afterwards,   on   or  about   May    loth*    1912,   said  con- 
tractor finishing  putting  the  roof  on  said  building,  and  by  the 
terms  of  said  contract,  a  payment  of  $2,000  thereupon  became 
due  from  said  defendant  to  said  contractor. 

11.  On  the  last  mentioned  day,  said  contractor  had  duly 
performed  all  the  terms  and  conditions  of  said  contract  upon 
his  part. 

12.  On  or  about  April  25th,  before  said  payment  became 
due  as  aforesaid,  and  in  advance  of  the  terms  of  said  con- 
tract (or,  for  the  purpose  of  avoiding  the  provisions  of  the 
Act  entitled  "An  Act  to  secure  to  mechanics  and  others  pay- 
ment for  their  labor  and  materials  in  erecting  any  buildings") 

defendant  paid  to  said  contractor  $ on  account  of 

payments  thereafter  to  fall  due  on  said  contract. 

13.  The  amount   still   due      to  said  contractor,  after   said 

last  mentioned  payment  was  made,  is  only  $ and 

is  not  sufficient  to  satisfy  plaintiff's  notice  and  demand  afore- 
said   (or,  said  advance  payment  was  the  full  amount  of  the 
sum  which  afterwards  fell  due  as  above  stated  ;)  and  because  of 
that  payment  there  is  now  nothing  due  from  defendant  to  said 
contractor  from  which  plaintiff's  said  notice  and  demand  can 
be  satisfied. 

Plaintiff  demands,  as  damages,  $ with  interest 

from 

121.     Cross    Complaint    Between    Co-Defendants    on    an 
Agreement  to  Indemnify. 

(See  Form  145.) 
(Insert  caption  and  title  of  original  cause.) 

The  defendant,  John  Doe,  residing  at 

brings  this  cross-complaint  against  his  co-defendant,  James 
Smith,  and  says: 

i.  Defendant,  James  Smith,  on 

directed  this  defendant  to  levy  the  execution  mentioned  in  the 
original  complaint  on  the  flour  therein  mentioned,  and  agreed 
to  indemnify  him  for  so  doing;  and  said  levy  was  made  on  the 
faith  of  said  agreement. 


Form  122  COMPLAINTS.  K;S 

2..  This  defendant,  at  the  time  of  said  levy,  believed  said 
flour  to  belong  to  John  Styles,  and  to  be  subject  to  such  levy. 

This  defendant  demands  that,  in  case  judgment  be  rendered 
against  him  on  said  original  complaint,  a  further  judgment 
may  be  rendered  in  his  favor  against  James  Smith  that  said 
Smith  is  liable  to,  and  shall  reimburse  this  defendant  for,  any 
sums  which  this  defendant  may  be  compelled  to  pay  on  any 
execution  issued  on  such  prior  judgment  in  favor  of  such 
original  plaintiff. 

See  Forms  302,  3023. 

122.  Against  Bailee  Without  Reward,  for  Misuse  of  Prop- 
erty Lent. 

1.  On  March  ist,  1912,  at  Trenton,  plaintiff  loaned  defend- 
ant, for  his  accommodation,  a  horse  of  the  plaintiff  to  ride 
from  Trenton  to  Princeton  and  return;  and  the  defendant  re- 
ceived it  for  that  purpose. 

2.  Defendant  on  that  day  and  the  day  following,  in  viola- 
tion of  his  duty,  rode  said  horse  to  New  Brunswick  and  return. 

3.  By  reason  thereof,  said  horse,  while  so  in  the  custody  of 
defendant,  became  lame  and  thereby  greatly  deteriorated  in 
value. 

Plaintiff  demands  $500  damages. 

123.  Negligence  Against  Bailee  Without  Reward. 

1.  On  December  8th,  1911,  at  Newark,  plaintiff  deposited 
with  defendant  three  oil  paintings  of  the  value  of  $1,000  to 
be  kept  by  defendant  for  plaintiff  without  reward,  and  to  be 
re-delivered  to  plaintiff  upon  request;  and  defendant  then  re- 
ceived said  goods  for  said  purpose. 

2.  Defendant  in  violation  of  his  duty,  negligently  placed 
and  kept  said  paintings  in  a  wet,  damp  cellar,  and  by  his  neg- 
lect said  paintings  were  ruined  and  made  worthless. 

Plaintiff  demands  $1,000  damages. 

124.  Negligence:     Against   Bailee   for   Injury  to   Goods 
Hired. 

i.  On  October  ist,  1911,  at  Trenton,  the  plaintiff  let  to 
defendant,  for  six  months  then  next  ensuing,  and  then  delivered 
to  him,  certain  household  furniture  of  plaintiff ;  and  defendant 
hired  and  received  the  same. 


139  COMPLAINTS.  Form  127 

2.  During  said  period,  defendant,  in  violation  of  his  duty, 
did  not  take  due  and  reasonable  care  of  said  furniture,  and  by 
his  neglect  and  want  of  reasonable  care  several  valuable  ar- 
ticles of  said  furniture  were  broken  and  destroyed,  to  wit 
(specify  articles  or  refer  to  a  schedule  annexed},  and  several 
other  articles  of  said  furniture  were  greatly  injured  and  dam- 
aged, to  wit  (specify  them  as  above). 

Plaintiff  demands  $500  damages. 

125.  Negligence:      Against    Bailee    Carrying    Goods    for 

Hire. 

1.  On  March  ist,  1912,  at  Newark,  plaintiff  delivered  to 
defendant  20  cases  of  wine  of  the  value  of  $500  of  plaintiff,  to 
be  carried  by  defendant  from  Newark  to  Jersey  City  for  hire ; 
and  defendant  received  said  goods  for  that  purpose. 

2.  Defendant,  in  violation  of  his  duty,  did  not  use  ordinary 
care  in  carrying  said  goods,  and  by  reason  of  his  neglect  the 
same  were  broken  and  destroyed. 

Plaintiff  demands  $500  damages. 

126.  Negligence :    For  Driving  a  Horse  Immoderately. 

1.  On  April  i,  1912,  at  New  Brunswick,  defendant  hired 
a  horse  of  plaintiff. 

2.  Defendant  drove   said  horse  so  immoderately,  and  so 
neglected  the  care  of  him,  that  on  that  day,  after  returning  the 
same  to  plaintiff,  the  horse  died. 

Plaintiff  demands  $ damages. 

127.  Negligence :     Against  a  Railroad  Company  for  Per- 
sonal Injuries;  Special  Damages. 

1.  Defendant  on  May  ist,  1912,  was  and  still  is,  a  corpo- 
ration and  was  also  a  common  carrier  of  passengers  by  rail- 
road between  Trenton  and  Newark. 

2.  On  said  day,  at  Trenton,  plaintiff  bought  of  defendant 
a  railroad  ticket  which  entitled  him  to  transportion  from  Tren- 
ton to  Newark  and  then  and  there  entered,  and  became  a  pas- 
senger in  one  of  the  trains  of  cars  of  defendant  on  said  rail- 
road. 

3.  While  he  was  so  a  passenger,  near  the  defendant's  sta- 
tion at  Rahway,  a  collision,  caused  by  the  negligence  of  de- 
fendant's servants,  occurred  between  the  train  in  which  de- 


Form  128  COMPLAINTS.  140 

fendant  was  traveling  and  another  train  of  defendant,  where- 
by plaintiff  (state  specific  injuries,  for  instance:)  was  bruised, 
his  head  was  severely  cut,  his  leg  was  broken,  and  he  was 
otherwise  seriously  injured. 

4.  At  the  time  of  said  injury,  plaintiff  was  a  salesman,  em- 
ployed and  receiving  a  salary  of  $100  per  month  for  his  ser- 
vices. By  reason  of  the  said  injury,  he  was  unable  to  perform 
his  duties  as  such  salesman  for  the  space  of  two  months  and 
during  that  time  wholly  lost  his  said  salary.  He  was  obliged 
to  pay  $100  for  medical  and  surgical  attendance  and  for  medi- 
cines. 

Plaintiff  demands  $5,000  damages. 

128.     Negligence:      Against    a    Physician    for    Unskillful 
Treatment;  Special  Damages. 

1.  At  the  time  herein  stated,  defendant  was  a  physician 
practicing  in  Newark. 

2.  In  May,  1912,  plaintiff,  being  then  sick  of  a  fever,  em- 
ployed defendant  as  a  physician  to  attend  him  and  cure  him, 
and  for  that  purpose,  defendant,  for  reward,  undertook,  as  a 
physician,  to  perform  that  service  for  plaintiff. 

3.  Defendant  did  not  use  due  and  proper  care  or  skill  in 
endeavoring  to  cure  plaintiff  of  said  fever  in  this ;  that  de- 
fendant, at  an  early  stage  of  plaintiff's  malady,  bled  plaintiff 
to  a  profuse  and  immoderate  extent,  taking  from  him  twenty 
ounces  of  blood,  the  same  being  an  excessive  and  injurious 
quantity  and  which  the  defendant,  if  he  had  used  proper  care 
and  skill  would  not  have  taken ;  and  also,  in  this ;  that  the  de- 
fendant, for  fourteen  days  next  following  said  bleeding,  un- 
skillfully  and  negligently  prescribed  and  caused  to  be  given 
the  plaintiff,  five  grains  of  mercury  every  six  hours  during  that 
time ;  the  same  being  excessive  and  injurious  doses,  which  the 
defendant,  if  he  had  used  due  and  proper  care  and  skill,  would 
not  have  administered  to  plaintiff. 

4.  By  reason  of  the  premises,  the  plaintiff  was  injured  in 
his  health  and  constitution,  suffered  great  pain,  was  weakened 
in  body,  and  was  obliged  to,  and  did,  expend  the  sum  of  $500 
in  endeavoring  to  be  cured  of  said  sickness  which  was  pro- 
longed and  increased  by  said  unskillful  and  improper  conduct 
of  defendant. 

Plaintiff  demands  $2,000  damages. 


141  COMPLAINTS.  Form  131 

129.  Negligence:     Against  a  Surgeon  for  an  Unskillful 
Operation:     Special  Damages. 

1.  Plaintiff,  in  May,   1912,  at  Trenton,  employed,  the  de- 
fendant, being  a  surgeon,  as  such,  to  set  and  heal  the  leg  of  the 
plaintiff  which  was  broken ;  and  for  that  purpose,  the  defendant 
for  reward,  undertook,  as  a  surgeon,  to  perform  that  service 
for  plaintiff. 

2.  Defendant  so  negligently  and  unskill fully  conducted  him- 
self, in  setting  and  attempting  to  heal  the  plaintiff's  leg,  as  to 
bring  on  an  inflammation  and  make  it  necessary  to  have,  and 
plaintiff  did  have,  the  leg  amputated. 

3.  By  reason  of  defendant's  said  negligence,  plaintiff  was 
made  sick  and  kept  from  attending  to  any  business  for  six 
months  and  was  put  to  great  expense  and  has  been,  and  still 
is,  disabled  from  attending  to  any  business. 

Plaintiff  demands  $2,500  damages. 

130.  Negligence:     Against  a  Watchmaker. 

1.  Plaintiff,  on   May   ist,    1912,  at  Trenton,  delivered  to 
defendant,  who  was  then  a  watchmaker,  a  watch  of  the  plain- 
tiff of  the  value  of  $500,  to  be  repaired,  for  reward. 

2.  Defendant,  in  repairing  said  watch,  did  it  so  carelessly 
and  negligently  that  he  broke  the  main  spring,  and  otherwise 
injured  it,  so  that  the  plaintiff  has  thereby  ever  since  wholly 
lost  the  use  of  said  watch. 

Plaintiff  demands  $ damages. 

131.  Negligence:    Accident  Caused  by  Obstructing  Street. 

1.  On  May  loth,  1912,  defendant  placed  a  large  quantity 
of  building  materials  in  a  public  street  known  as  Main  Street 

in  the  city  of near  the  intersection  of  State  Street, 

and  left  the  same  there  for  several  days. 

2.  Said  materials  were  so  negligently  placed  as  to  obstruct 
the  highway  in  an  improper  and  dangerous  manner ;  and,  dur- 
ing the  night  time,  were  negligently  left  without  placing  any 
light  or  signal  near  them  to  indicate  danger. 

3.  In  consequence  of  said  negligence  and  improper  con- 
duct of  defendant,  in  the  night  time  of  said  day,  the  carriage 
of  plaintiff,  with  plaintiff  therein,  then  passing  through  said 
street,  was  accidently  and  without  fault  or  negligence  on  the 


Form  132  COMPLAINTS.  142 

part  of  plaintiff  driven  against  said  obstructions,  and  was  there- 
by overturned  and  plaintiff  was  thrown  out. 

4.  The  right  hind  wheel  of  said  carriage  was  broken,  the 
axle  bent  and  the  carriage  otherwise  greatly  damaged,  and 
plaintiff  was  severely  bruised  in  consequence  of  said  accident. 

Plaintiff  demands  $1,000  damages. 

132.  Negligence:    Defendant's  Servant  Allowed  a  Weight 
to  Fall  on  Plaintiff. 

1.  At  the  times  herein  stated,  plaintiff  was  a  cook  in  the 

service  of  John  Doe  at  No.  10  King  Street  in  City  of , 

and  defendant  was  an  ice  merchant. 

2.  On  June  2,  1912,  said  defendant,  by  his  servant,  deliv- 
ered ice  at  the  house  of  said  John  Doe,  and  while  so  doing,  and 
by  reason  of  his  negligence,  allowed  a  block  of  ice  weighing  100 
pounds  to  fall  on  plaintiff. 

3.  Plaintiff  was  thereby  severely  bruised  and  her  shoulder 
was  broken,  and  she  became,  in  consequence  of  said  injuries, 
personally  disabled  and  disfigured. 

4.  By  reason  of  said  injuries,  plaintiff  has  been  prevented, 
for  a  long  time,  from  attending  to  her  business  and  thereby 
lost  her  earnings  for  a  long  time  and  has  incurred  $100  ex- 
pense for  nursing  and  medical  attendance. 

Plaintiff  demands  $2,000  damages. 

133.  Negligence :    Against    Warehousemen    for    Loss    of 
Goods. 

1.  On  May  ist,  1912,  defendants  kept  a  warehouse  at  Ho- 
boken,  and  plaintiff  then  delivered  to  them  at  said  warehouse 
certain  merchandise,  to  wit:  (briefly  describe  the  goods,  or  re- 
fer to  a  list  annexed),  of  the  value  of  $800  being  the  property 
of  plaintiff  to  be  stored  in  said  warehouse,  for  reward,  until 
called  for  by  plaintiff;  and  the  defendants,  as  warehousemen 
then  received  said  goods  for  that  purpose. 

2.  Defendants,  in  violation  of  their  duty,  did  not  take  due 
care  of  said  merchandise ;  and  through  their  neglect  the  same 
became  wholly  lost  to  plaintiff. 

Plaintiff  demands  $1,000  damages. 


143  COMPLAINTS.  Form  136 

134.  Negligence:    Against  Warehouseman  for  Injury  to 
Goods. 

1.  (Same  as  i  in  Form  133.) 

2.  When  said  goods  were  delivered  as  aforesaid,  plaintiff 
caused  defendant  to  be  informed  that  it  was  necessary  for 
their  preservation  that  they  should  be  kept  dry. 

3.  Defendant,  in  violation  of  his  duty,  negligently  allowed 
said  goods  to  become  wet,  whereby  they  became  greatly  in- 
jured and  depreciated  in  value. 

Plaintiff  demands  $500  damages. 

135.  Negligence:    Against  a  Wharfinger. 

1.  On  May  ist,  1912,  defendant  was  a  wharfinger  and  car- 
ried on  his  business  upon  his  wharf  called  Munson's  Wharf  on 
the  Delaware  River  at 

2.  On  that  day,  plaintiff  delivered  to  defendant,  as  such 
wharfinger,  upon  said  wharf,  ten  boxes  of  woolen  cloth  be- 
longing to  said  plaintiff  of  the  value  of  $1,000,  to  be  by  de- 
fendant safely  kept  upon  said  wharf,  and  thence  shipped  on 
board  a  certain  vessel  to  be  carried  thence  to  Philadelphia ;  and 
defendant  received  said  goods  for  that  purpose. 

3.  Defendant,  in  violation  of  his  duty,  neglected  to  give  said 
goods  reasonable  care,  and  by  reason  of  his  negligence  said 
goods  became  wet  and  were  thereby  injured  and  deteriorated 
in  value. 

Plaintiff  demands  $500  damages. 

136.  Negligence :     Death  Caused  by  Electric  Wire. 

1.  Defendant  is  a  corporation.     At  the  times  hereinafter 
stated,  defendant  owned  and  operated  an  electric  lighting  sys- 
tem in  the  City  of ,  consisting  of  insulated  wires 

suspended  from  poles  placed  upon  the  public  streets;  through 
which  wires,  electricity  for  lighting  purposes  was  transmitted 
from  a  generating  plant. 

2.  On  June  ist,  1912,  defendant  negligently  permitted  one 
of  its  said  wires  to  lie  upon  and  across  the  sidewalk  of  Main 
Street,  which  is  a  public  street  in  said  City,  for  about  three 
hours,  without  safe  or  proper  insulation  and  without  any  guard 
or  watchman  to  protect  persons  walking  upon  said  sidewalk 
from  contact  with  said  wire;  and  negligently  transmitted  a 
current  of  electricity  through  the  same  during  all  that  time. 


Form  137  COMPLAINTS.  144 

3.  Because  of  the  negligence  above  stated,  on  that  day, 
John  Doe,  who  was  then  lawfully  walking  upon  said  sidewalk, 
came  in  contact  with  the  said  wire,  and  was  shocked  by  a  dis- 
charge of  electricity  from  said  wire  through  his  body:  where- 
by he  became  insensible,  and  afterwards,  to  wit,  on  June  2nd, 
1912,  and  within  24  calendar  months  of  the  commencement  of 
this  action,  died  from  the  effect  of  said  shock. 

4.  On  July  ist,  1912,  the  Surrogate  of Coun- 
ty granted  letters  of  administration  upon  the  Estate  of  said 
John  Doe  to  plaintiff,  who  accepted  the  same. 

5.  Said  decedent  left  surviving  him,  the  plaintiff  who  is  his 
widow,  and  two  infant  children,  who  are  his  only  next  of  kin : 
all  of  whom  were  dependent  upon  the  decedent  for  their  sup- 
port, and  who  have,  by  his  death,  suffered  great  pecuniary  in- 
jury. 

Plaintiff  demands  $10,000  damages. 

137.     Negligence:     Accident  at  a  Railroad  Crossing. 

1.  Defendant  is  a  corporation.    At  the  time  within  stated, 
defendant  operated  a  steam  railroad  upon  tracks  laid  through 
the  City  of 

2.  The   said  railroad,   within  said  City,   crossed  a  public 
street  called  High  Street,  and  at  that  crossing  defendant  had 
erected,  on  both  side  of  the  railroad  tracks,  gates  which  were 
guarded  and  operated  by  servants  of  defendants.     It  was  the 
duty  of  defendant,  by  its  servants,   for  the  protection  of  all 
persons  crossing  said  railroad  on  said  street,  to  close  said  gates 
at  the  approach  of  trains  and  to  keep  them  closed  while  trains 
were  passing  on  said  railroad. 

3.  On  June  loth,   1912,  defendant,  by  its  servants,  negli- 
gently permitted  said  gates  to  remain  open  while  a  train  of  cars, 
then    being    operated    by    defendant's    servants,    was    passing 
along  said  railroad  over  said  crossing ;  and  negligently  failed 
to  give  signal  of  the  approach  of  said  train  by  ringing  a  bell 
or  blowing  a  whistle,  or  by  giving  sufficient  warning  of  said 
approach  in  any  other  manner. 

4.  Because  of  said  negligent  omissions,  said  train  collided 
with  a  pair  of  horses  and  a  wagon  belonging  to  plaintiff  and 
then  being  lawfully  driven  by  plaintiff's  servant  over  said  cross- 
ing and  across  said  railroad.     Whereby  the  said  horses  were 
killed  and  the  said  wagon  was  destroyed,  and  plaintiff,  who 


145  COMPLAINTS.  Form  140 

was  riding  therein,  was  thrown  out  and  his  leg  was  broken, 
and  he  was  otherwise  greatly  injured. 

5.     (State  special  damages.) 

Plaintiff  demands  $5,000  damages. 

138.  Negligence:     Trolley  Accident. 

1.  Defendant  is  a  corporation.     At  the  time  herein  men- 
tioned, defendant  operated  a  trolley  railroad  in  the  Town  of 

by   running  cars,   propelled  by  electricity,  over 

rails  laid  upon  the  public  streets  in  said  town. 

2.  On   May  5th,   1912,  defendant,  by  its  servants,  negli- 
gently operated  and  ran  one  of  its  cars  at  an  excessive  rate  of 
speed  in  and  along  Main   Street  near  Bank   Street  in  said 
Town,  in  such  manner  as  to  lose  proper  control  thereof. 

3.  Because  of  said  negligence,  said  car  struck  and  ran  over 
plaintiff  who  was  then  lawfully  crossing  said  street  and  rail- 
road track;  whereby  (state  special  injuries,  such  as:)    his  arm 
was  broken,  and  other  severe  injuries  were  inflicted  upon  him. 

4.  (State  special  damages.') 

Plaintiff  demands  $ damages. 

139.  Negligence:    Collision  of  Wagons. 

1.  On  March  loth,  1912,  plaintiff  was  driving  a  wagon  be- 
longing to  him,  along  the  highway  near  Freehold. 

2.  On  that  day,  the  defendant,  while  driving  in  another 
wagon  along  the  same  highway,  negligently  drove  against  the 
wagon  of  plaintiff  and  thereby  broke  and  injured  the  same. 

3.  By   mea"ns  of  said  collision,  plaintiff  was  thrown  out 
of  his  wagon  and  much  bruised  and  lamed  in  his  right  hip  and 
side,  and  badly  cut  upon  his  face  and  was  thereby  prevented 
from  transacting  his  ordinary  business  and  was  obliged  to 
spend  $100  for  medicines  and  medical  aid  in  being  cured  of  his 
injuries. 

Plaintiff  demands  $1,000  damages. 

140.  Negligence :    Leaving  Open  a  Cellar  Area  Adjoining 
Street. 

i.     At  the  time  herein  stated,  defendant  was  possessed  of  a 

cellar  at  No.  10 Street,  in  Newark,  immediately 

adjoining  a  public  street,  and  connected  therewith  through  a 


Form  141  COMPLAINTS.  146 

deep  area  opening  within  the  sidewalk  in  said  street ;  which 
area  was  usually  protected  by  a  door  opening  upon  said  side- 
walk. 

2.  On  June  ist,  1912,  defendant  negligently  permitted  the 
said  door  to  remain  open,  without  any  protection  to  prevent 
persons  passing  upon  said  sidewalk  from  falling  into  said  area. 

3.  On  that  day,  because  of  said  negligence,  plaintiff,  while 
lawfully  walking  along  said  sidewalk,   fell  into  said  cellar; 
whereby  his  arm  was  broken,  his  shoulder  dislocated  and  he 
was  otherwise  seriously  injured. 

4.  (State  special  damage,  if  any.) 
Plaintiff  demands  $ damages. 

141.     Negligence:     Against  Telegraph  Company  for  Not 
Transmitting  Message. 

1.  Defendant  is  a  corporation.     At  the  time  herein  stated 
defendant  carried  on  the  business  of  transmitting  telegraphic 
messages   for  the  public,  for  reward,  by  telegraph  wires  or 
lines,  between  Trenton  and  New  York  City  in  the  State  of 
New  York,  and  other  places. 

2.  On  July   i,   1912,  at  Trenton,  plaintiff  delivered  to  de- 
fendant (and  defendant  accepted)  a  message  to  be  transmitted 
by  defendant  for  plaintiff,  for  reward,  from  Trenton  to  New 
York  City,  addressed  to  John  Doe,  10  Broadway,  New  York 
City. 

3.  Defendant  did  not  transmit  the  said  message  and  de- 
liver the  same  to  the  person  to  whom   it   was  so   addressed 
within  a  reasonable  time,  to  wit:  not  within  ten  hours   from 
the  time  said  message  was  so  delivered  to  defendant. 

4.  Because   of   defendant's    failure    to   promptly    transmit 
and  deliver  said  message,  plaintiff  was  prevented  from  receiv- 
ing a  sum  of  money  (to  wit  $500)   which  would  have  been 
sent  to  him  if  said  message  had  been  promptly  transmitted  and 
delivered  and  was  put  to  delay  and  inconvenience  in 'await- 
ing an  answer  to  said  message,  and  was  prevented  from  trans- 
acting his  business,  and  lost  the  money   (to  wit,  fifty  cents) 
which  he  paid  defendant  for  transmitting  said  message. 

Plaintiff  demands  $ damages. 

For  other  cases  of  negligence,  see  Forms  77,   78,  81,  87, 
88,  236. 


147  COMPLAINTS.  Form  144 

142.  For  Assault. 

On  May  loth,  1912,  defendant,  while  standing  near  plaintiff, 
•on  Broad  street,  in  Newark,  assaulted  plaintiff,  by  raising  a 
heavy  stick  and  threatening  to  strike  him. 

Plaintiff  demands  $100  damages. 

143.  For  Assault  and  Battery:     Special  Damages. 

1.  On  January   i,   1912,  defendant  assaulted  plaintiff  and 
struck  him  with  a  cane. 

2.  Plaintiff  was  then  a  school  teacher,  receiving  a  salary 
of  $300  a  quarter  year. 

3.  Said  battery  injured  plaintiff  severely  and  disabled  him 
from    attending   to    his    business    as    school    teacher    for    {wo 
months  thereafter;  whereby  he  lost  part  of  said  salary.     He 
was  also  compelled   to   pay  $100   for   medicine   and   medical 
care  and  attendance. 

Plaintiff   demands  $1,000  damages. 

144.  Trespass:    Against  a  Railroad  Company  for  Unlaw- 
ful Ejection  from  Train. 

1.  Plaintiff,  at  the  time  of  the  injuries  complained  of,  was 
a  ship-joiner,  earning  his  living  at  that  trade. 

2.  Defendant  was  then  and  is  still  a  corporation,  and  was 
then  a  common  carrier  of  passengers  by  railroad  from  Metu- 
chen  to  Jersey  City. 

3.  On  April  ist,  1912,  plaintiff  bought  a  ticket  of  defend- 
ant which  entitled  him  to  a  safe  passage  on  said  railroad  from 
Metuchen  to  Jersey  City. 

4.  On    that    day,    while    defendant   was    carrying   plaintiff 
in  one  of  its  trains  from  Metuchen  to  Jersey  City,  in  pursu- 
ance of  the  contract  mentioned  in  the  preceding  paragraph, 
the  servants  of  the  defendant  unlawfully  seized  the  plaintiff, 
and  unlawfully  attempted  to  violently  and  forcibly  put  him  off 
the  train  upon  which  he  was  riding  and  in  making  said  attempt. 
tore  the  clothes  of  the  plaintiff,  injured  his  knee  and  otherwise 
bruised  and  hurt  him. 

5.  By   reason   of    said    injuries,    plaintiff    was    ill    for   six 
weeks  and  was  compelled  to  expend  a  large  sum,  namely,  $200, 
for  medical  attendance  and  care,  and  medicines,  suffered  great 
pain,  was  prevented   from   pursuing  his  trade  as  ship-joiner 
and  was  made  a  cripple  for  life. 

Plaintiff  demands  $10,000  damages. 


Form  144  COMPLAINTS.  148 

145.  Trespass:     Against  Sheriff  and  Execution  Creditor 
for  Illegal  Seizure. 

1.  Plaintiff  is  trustee  in  insolvency  of  the  estate  of  John 
Styles,  appointed  by  the  Court  of  Common  Pleas  of  the  County 
of  Hudson  under  the  Insolvent  Debtor's  Act  upon  the  peti- 
tion of  Richard  Roe,  by  order  of  said  Court  made  March  loth, 
1912. 

2.  On  that  day,  said  Styles,  in  obedience  to  said  order  of 
Court,  made  an  assignment  to  plaintiff  of  all  of  his  property 
in  accordance  with  the  terms  of  the  said  statute. 

3.  Defendant  John  Doe  is,  and  for  more  than  one  year  last 
past  has  been  Sheriff  of  Hudson  County. 

4*.  The  fifty  barrels  of  flour  hereinfter  mentioned  belonged 
to  said  John  Styles  and  were  a  part  of  his  estate  at  the  time  of 
the  plaintiff's  said 'appointment. 

5.  On  April  loth,  1912,  the  defendant  John  Doe  as  such 
Sheriff,  under  color  of  a  writ  of  execution  issued  on  a  judg- 
ment rendered  in  favor  of  the  defendant  James  Smith  in  an 
action   by   him    against   said   John    Styles,    wrongfully    levied 
upon  and  seized  said  50  barrels  of  flour  then  being-  of  the 
value  of  $400,  and  afterwards  caused  the  same  to  be  sold  at 
auction  and  appropriated  the  proceeds  thereof. 

6.  In  making  said  seizure  and  sale,  the  defendant  John 
Doe  acted  under  the  special  direction  of  the  defendant  James 
Smith,   who  had   notice   that   the    said   property   belonged    to 
plaintiff. 

Plaintiff  demands  $400  damages. 

146.  Trespass  to  Goods. 

1.  On  May  loth,  1912,  plaintiff  was  lawfully  possessed  of 
ten  Jersey  cows,  of  the  value  of  $800. 

2.  On  that  day,  in  Newark,  the  defendant  forcibly  took  said 
cows  from  plaintiff  and  carried  them  away. 

Plaintiff  demands  $1,000  damages. 

147.  Trespass  to  Goods:     Exemplary  Damages. 

1.  (Same  as  i  in  Form  146.) 

2.  On  that  day,  in  Newark,  the  defendant  wilfully,  and 
without  color  of  right,  and  against  the  will  of  defendant,  forci- 
bly took  said  cows  from  him  and  carried  them  away. 

Plaintiff  demands  $2,000  damages. 


149  COMPLAINTS.  Form  151 

148.  Trespass  to  Goods  and  Person ;  Exemplary  Damages. 

1.  (Same  as  i  in  Form  139.) 

2.  On  said  day,  defendant  while  driving  in  another  wagon 
along   the    same    highway,    forcibly,    wilfully,    and    wantonly 
drove  against  the  wagon  of  plaintiff  and  thereby  broke  and 
injured  it. 

3.  (Same  as  3  in  Form  No.  139.) 
Plaintiff  demands  $2,000  damages. 

149.  Trespass :    For  Taking  and  Riding  Plaintiff's  Horse. 

1.  On  March  ist,  1912,  defendant  unlawfully  took  a  horse 
belonging  to  plaintiff  from  plaintiff's  possession  and  rode  the 
horse  for  a  long  distance  at  full  speed. 

2.  Said  horse  thereby  became  broken-winded. 
Plaintiff  demands  $600  damages. 

150.  Trespass  on  Lands. 

1.  On  July  ist,  1912,  plaintiff  was  lawfully  possessed  of 

certain  lands  in  the  township  of ,  Mercer  County, 

bounded  north  by  lands  of  John  Doe,  east  and  south  by  the 
road,  and  west  by  land  of  Richard  Roe. 

2.  On   that   same   day,   defendant   unlawfully   entered   on 
said  land  and  cut  down  six  cords  of  hickory  wood  thereon  of 
the  value  of  $40. 

Plaintiff  demands  $100  damages. 

151.  Trespass  on  Land  with  Cattle. 

1.  On  June  loth,  1912,  plaintiff  was  the  owner  and  occu- 
pier of  a  piece  of  land  in  the  Town  of  Red  Bank,  bounded 

north  by  the road,  east  by  land  of  A.  B.,  south 

and  west  by  land  of  C.  S. 

2.  On  that  day  the  cattle  of  the  defendant,  by  his  negli- 
gence, entered  on  said  land  and  trod  down  the  corn  and  con- 
sumed the  herbage  there  growing. 

Plaintiff  demands  $200  damages. 


Form  152     t  COMPLAINTS.  150 

152.  Trespass  Upon  Lands  and  to  Goods. 
First  Count. 

1.  Plaintiff,  before  and  at  the  time  herein  stated,  was  a 
boarding-house  keeper  in  possession  of,  and  carrying  on  busi- 
ness in,  the  house  known  as  No.  10  Chestnut  street  in 

2.  On  January  ist,   1912,  defendant,  with  other  men  act- 
ing under  his  orders,  broke  into  said  house  and  forcibly  thrust 
plaintiff  therefrom. 

3.  Defendant  then  took  possession  of  said  house  and  has 
kept  plaintiff  out  of  possession  thereof  from  thence  to  the 
present  time. 

4.  The  business  of  plaintiff,  as  boarding-house  keeper,  was 
thereby  destroyed. 

Second  Count. 

1.  Paragraph   I   of  the  first  count  is  made  a  part  of  this 
count. 

2.  On   January    ist,    1912,    defendant   entered    said    house 
and  unlawfully  and  forcibly  seized  goods  and  furniture  there- 
in, belonging  to  plaintiff,  of  the  value  of  $500  and  appropri- 
ated them  to  his  own  use. 

Plaintiff  demands  on  the  first  count  $1,000  damages;  on  the 
second  count  $500  damages. 

153.  Malicious  Prosecution;  Special  Damages. 

1.  On  May  ist,  1912,  at  Jersey  City,  in  the  County  of  Hud- 
son, defendant  made  a  complaint  of  larceny  in  due  form  to 
John  Doe,  a  Justice  of  the  Peace  in  and   for  said  County, 
thereby  charging  plaintiff  with  stealing  a  gold  watch  of  the 
defendant ;  and  said  Justice,  at  the  request  of  defendant,  issued 
a  warrant  in  due  form,  upon  said  complaint,   for  the  arrest 
of  plaintiff. 

2.  On    May    2d,    1912,    plaintiff    was    arrested    upon    said 
warrant  and  brought  before  the  said  John  Doe  as  Justice  of  the 
Peace  at  Jersey  City,  and  in  consequence  of  the  false  testi- 
mony of  the  defendant,  then  and  there  given  in  support  of 
said  charge,  defendant  was  bound  -over  to  the  then  next  term 
of  the  Court  of  Quarter  Sessions  of  Hudson  County,  to  await 
the  action  of  the  Grand  Jury  upon  said  charge. 

3.  The  Grand  Jury  found  no  indictment  against  defendant 
upon   said  charge  and  plaintiff  and  his  bail  were  duly  dis- 
charged from  their  recognizance. 


151  '   COMPLAINTS.  Form  155 

4.  Said  charge  was  in  fact  false. 

5.  Defendant  made  said  charge  from  motives  of  malice. 

6.  There   was  no  reasonable  or  probable  cause   for  said 
prosecution. 

7.  Plaintiff   is,   and   for  ten  years   last   past   has   been,  a 
retail  dealer   in  groceries  and   said   prosecution   has   injured 
plaintiff   in  his   business   and  caused   many  persons   to   cease 
from  trading  with  him.     It  has  injured  his  reputation  and  cost 
him   $100  in  conducting,   upon  his   side,  the   examination   of 
said  charge  before  said  Justice. 

Plaintiff  demands  $2,000  damages. 

154.  For  Libel. 

1.  On  June  loth,   1912,  at  Newark,  defendant  published, 
in  a  letter  addressed  to  John  Doe,  the  following  words  con- 
cerning plaintiff;  "Richard  Roe  is  a  man  to  avoid.     He  is  in- 
the  habit  of  obtaining  goods  and  credit  on  false  representa- 
tions." 

2.  Said  publication  was  false  and  malicious. 
Plaintiff  demands  $3,000  damages. 

155.  For  Libel;  Special  Damages. 

1.  Plaintiff  is,  and  for  more  than  ten  years  last  past,  has 
been  a  merchant  engaged  in  the  wholesale  dry  goods  business 
in 

2.  On  May  loth,  1912,  in  said  town,  defendant  published 
in  a  newspaper  called  The  Gazette,  the  following  words  con- 
cerning plaintiff :  "John  Smith  of  this  city  has  modestly  retired 
to  foreign  lands.     It  is  said  that  creditors,  to  the  amount  of 
$10,000  are  anxiously  seeking  his  address." 

3.  Defendant    meant    thereby   that   the    plaintiff    had    ab- 
sconded  to   avoid   his   creditors   and   with  .  intent   to   defraud 
them. 

4.  Said  publication  was  false  and  malicious. 

5.  Said  publication  was'  read  by  several  of  plaintiff's  cus- 
tomers, and  led  them  to  decline  to  enter  into  certain  business 
engagements  with  the  plaintiff,  which  they  otherwise  would 
have  entered  into,  whereby  plaintiff  suffered  great  pecuniary 
loss. 

Plaintiff  demands  $5,000  damages. 


Form  156  COMPLAINTS.  152 

156.  Slander. 

1.  On  February   loth,   1912,  in  Newark,  defendant  spoke 
in  the  presence  and  hearing  of  John  Doe,  the  following  words 
concerning  the  plaintiff:  "He  is  a  thief." 

2.  Said  words  were  false  and  malicious. 
Plaintiff  demands  $1,000  damages. 

157.  Slander  with  Special  Damages. 

1.  On  May  loth,  1912,  in  Jersey  City,  defendant  said  to  one 
John  Smith,  concerning  the  plaintiff :     "He  is  a  young  man 
of  remarkably  easy  conscience." 

2.  Plaintiff  was  then  seeking  employment  as  a  clerk  to  said 
Smith,  and  defendant  meant  by  his  said  words  that  the  de- 
fendant was  not  trustworthy  as  a  clerk. 

3.  Said  words  were  false  and  malicious. 

4.  Because  of  said  words,  said  Smith  refused  to  employ 
plaintiff  as  a  clerk. 

Plaintiff  demands  $500  damages. 

158.  Another  Form  for  the  Same. 

1.  Plaintiff  is,  and  for  more  than  ten  years  last  past  has 
been,  a  merchant  engaged  in  the  retail  dry  goods  business  in 
Newark. 

2.  Defendant,  on  July  ist,  1912,  in  Newark,  in  the  hearing 
of  divers  persons,  said  concerning  the  plaintiff  as  such  mer- 
chant :    "John  Doe  is  a  great  villian  and  scoundrel,  a  bankrupt, 
not  worth  a  cent.     He  is  not  able  to  pay  his  debts." 

3.  Said  words  were  false  and  malicious. 

4.  Plaintiff,    because   of   said    words,   has    suffered    in    his 
reputation   and   has   lost   the   good  will   and   trade   of  many 
persons  with  whom  he  otherwise  would  have  had  profitable 
business. 

5.  Because  of  said  words  plaintiff  has  lost  the  trade  of 

and who  were  his  customers  uutil 

said  words  were  spoken  and  who  ceased  to  be  his  customers 
because  thereof. 

Plaintiff  demands  $5,000  damages. 


153  COMPLAINTS.  Form  162 

159.  Criminal  Conversation. 

1.  Jane  Roe  is  and  for  more  than  five  years  last  past  has 
been,  the  wife  of  plaintiff. 

2.  Defendant,   on   March   ist,    1912,  and  on  divers  other 
days  since  that  day,  seduced  and  carnally  knew  said  Jane  Roe. 

3.  In  consequence  of  said  seduction,  the  plaintiff  has  lost 
the  affection  of  his  wife  and  has  been  deprived  of  her  society 
and  assistance,  which  he  otherwise  would  have  had,  and  has 
suffered  great  distress  of  mind. 

Plaintiff  demands  $ damages. 

160.  Seduction. 

1.  Before  and  at  the  times  herein  stated,  Jane  Doe  was 
the  plaintiff's  daughter,  and  lived  with  him  and  rendered  him 
services  as  his  servant. 

2.  In  or  about  the  month  of  January,  1912,  defendant  se- 
duced,   and    committed    fornication    with,    said    Jane    Doe, 
whereby  she  became  pregnant  and  on  November  10,  1912,  gave 
birth  to  a  child. 

3.  Because  of  said  seduction,  said  Jane  was  sick  both  before 
and  after  her  confinement,  and  the  plaintiff  lost  her  services 
for  a  long  time,  and  also  incurred  expense  to  the  amount  of 
$300  for  nursing,  medicines,  and  medical  attention. 

Plaintiff  demands  $5,000  damages. 

161.  Conversion  of  Goods. 

1.  On    October    i,    1911,    defendant    had    lawfully    in    his 
possession  100  barrels  of  flour,  of  the  value  of  $6  a  barrel, 
belonging  to  plaintiff. 

2.  On  that  day,  defendant  sold  said  flour,  without  authority 
from  the  plaintiff,  and  thereby  converted  the  same  to  his  own 
use. 

Plaintiff  demands  $600  damages. 

162.  Another  Form  for  the  Same. 

1.  On  May  ist,  1912,  one  John  Doe,  being  the  owner  of 
two  bay  horses  of  the  value  of  $700,  delivered  them  to  the  de- 
fendant (and  he  received  them)  in  order  that  he  might  break 
in  the  same. 

2.  On  May  25th,  1912,  John  Doe  sold  said  horses  (they  still 
being  in  the  possession  of  defendant  for  the  purpose  aforesaid) 


Form  163  COMPLAINTS.  154 

to  the  plaintiff  and  gave  him  an  order  on  the  defendant  for 
delivery  of  the  same. 

3.  On  June  1st,  1912,  plaintiff  presented  said  order  to  de- 
fendant and  demanded  said  horses,  but  he  refused  and  still  re- 
fuses to  deliver  them. 

Plaintiff  demands  $700  damages. 

163.  For  Conversion  by  an  Executor. 

1.  On  January  I,  1912,  John  Doe,  in  his  lifetime,  delivered 
certain  household  furniture  particularly  described  in  the  Sched- 
ule hereto  annexed,  being  then  his  property,  to  the  defendant, 
to  be  stored  and  returned  to  the  said  Doe  upon  demand. 

2.  Afterwards,  said  John  Doe  died,  leaving  a  Will  which 
was  admitted  to  probate  by  the  Surrogate  of  Hudson  County 
and  upon  which  letters  testamentary  were  issued  to  plaintiff, 
as  executor  thereof,  and  were  accepted  by  him. 

3.  Afterwards,  on  June  i,  1912,  plaintiff,  as  executor  as 
aforesaid,  demanded  said  goods  of  defendant,  but  defendant 
refused  to  deliver  the  same. 

4.  Plaintiff,  as  such  executor,  demands  $1,000  damages. 

164.  Fraud:    For  Conspiring  to  Cheat. 

1.  At  the  time  of  the  grievances  herein  mentioned,  plaintiff 
was  a  merchant  doing  business  in  New  York  City,  State  of 
New  York,  and  defendants  all  resided  in  Newark,  New  Jersey. 

2.  In  March,  1912,  at  Newark,  the  defendants  conspired  and 
agreed  together  to  cheat   and   defraud   such   merchants   and 
traders  in  New  York  City  as  they  might  be  able  to  deceive  by 
false  and  deceitful  arts  and  practices,  as  hereinafter  stated. 

3.  In  pursuance  of  their  said  agreement,  the   defendants, 

David and  George went  to  New  York 

City  and  said  David,  informed  divers  merchants  there,  and 
among  others,  John  Doe  and  Richard  Roe,  doing  business  un- 
der the  firm  name  of  Doe  &  Roe,  that  he,  said  David,  wished 
and  intended  to  purchase  large  quantities  of  goods ;  that  he  was 
a  man  of  large  property  and  safely  to  be  trusted  and  that  he 
shortly  expected  Judge  B.  of  New  Jersey,  meaning  defendant 
Nicholas  B.,  to  be  there  with  a  large  sum  of  money  for  him, 
the  said  David. 

4.  Said  David  made  said  declarations  for  the  purpose  of 
inducing  said  Doe  &  Roe,  and  other  merchants  there,  to  believe 


155  COMPLAINTS.  Form  164 

him  to  be  a  man  of  property,  fit  to  be  trusted,  to  sell  goods 
upon  credit,  and  to  recommend  him  to  others,  as  a  man  fit  to 
be  trusted. 

5.  Said  George  was  a  merchant  then  well  known  to  mer- 
chants in  New  York  City  to  be  a  man  of  considerable  property, 
and  he  accompanied  said  David  to  New  York  City  and  assist- 
ed him  in  purchasing  goods  as  hereinafter  mentioned  for  the 
purpose  of  giving  greater  credit  to  the   statements   of  said 
David,  and  with  like  intent. 

6.  Shortly  after  the  arrival  of  said  David  and  George  in 
New  York  City,  the  defendants,  Nicholas  B.  and  Henry  G,  in 
pursuance  of  the  defendants'  said  agreement,  went  to  New 
York  City  and  carried  there  and  delivered  to  said  David  $2,000. 

7.  Said  money  was  so  delivered  for  the  purpose  of  making 
it  appear  that  said  David  was  a  man  of  property  fit  to  be  trusted 
and  to  enable  him  to  buy  of  such  merchants  as  might  be  in- 
duced to  sell  large  quantities  of  goods  and  to  pay  cash  in  part 
and  to  obtain  credit  for  the  residue. 

8.  After  the  arrival  of  said  Xicholas  and  Henry  at  New 
York  City,  all  the  defendants,  in  pursuance  of  their  said  agree- 
ment,  represented  to  Doe  &  Roe,  and  to  many  other  mer- 
chants at  New  York  City,  that  said  David  was  a  man  of  prop- 
erty, of  good  character,  and  safe  to  be  trusted. 

9.  Said  representations  were  made  by  the  defendants  for 
the  purpose  alleged  in  paragraph  four,  and  were  made  to  Doe 
and  Roe  particularly  to  induce  them  to  recommend  said  David 
to  such  merchants  in  New  York  City  as  might  be  induced  to 
sell,  on  the  terms  aforesaid,  such  goods  as  he  might  desire  to 
purchase. 

10.  Said  Doe  and  Roe  believed  the  representations  so  made 
by  defendants  and,  influenced  thereby,  and  at  the  request  of 
defendants,  recommended  said  David  to  plaintiff  and  repre- 
sented him  to  be  a  man  of  property,  of  good  character  and  fit 
to  be  trusted. 

11.  Plaintiff  confided  in  said  recommendations  and  believed 
said  representations  of  Doe  and  Roe  and,  influenced  thereby, 
and  at  the  request  of  said  David,  on  April  ist,  1912,  in  New 
York  City,  sold  and  delivered  to  him,  goods  to  the  amount,  in 
value,  of  more  than  $2,000;  and  said  David,  of  the  money  so 
advanced  by  said  Nicholas  and  Henry,  made  a  part  payment 
thereon  of  $500:  and   for  the  residue  thereof,  plaintiff  gave 


Form  165  COMPLAINTS.  156 

said  David  ninety  days'  credit.  To  secure  the  payment  of  the 
residue,  said  David  then  gave  his  note  to  Doe  and  Roe,  dated 
April  ist,  1912  for  $1,500  payable  in  ninety  days,  to  the  order 
of  Doe  and  Roe,  and  the  said  payees,  at  the  request  of  David, 
then  and  there  endorsed  and  delivered  said  note  to  plaintiff. 

12.  In  fact,  at  the  time  of  said  representations,  said  David 
was  without  property  and  was,  and  is  still  insolvent. 

13.  Said  defendants  and  each  of  them,  at  the  time  of  mak- 
ing the  several  representations  aforesaid,  that  said  David  was 
a  man  of  property  and  fit  to  be  trusted  and  of  good  character, 
knew  that  the  said  representations  were  false. 

14.  Said  Doe  and  Roe  were  ignorant  of  the  conspiracy  of 
the  defendants  and  of  their  intent  to  defraud  and  were  de- 
ceived by  them. 

15.  The  goods  aforesaid  were  obtained  by  the  defendants, 
for,  and  applied  to,  the  common  benefit  and  use  of  all  the  de- 
fendants. 

16.  Before  the  maturity  of  said  note,  mentioned  in  para- 
graph n,  the  said  Doe  and  Roe  became  and  have  ever  since 
remained,  insolvent. 

17.  Said  note  is  due  and  unpaid. 
Plaintiff  demands  $2,000  damages. 

165.     Deceit:     Fraudulently  Concealing  the  Insolvency  of 
a  Third  Person. 

1.  Plaintiff,  at  the  times  herein  mentioned,  was  a  whole- 
sale grocery  merchant,   doing  business   in   Newark. 

2.  On  May  ist,  1912,  at  plaintiff's  place  of  business,  de- 
fendant introduced  to  plaintiff,  as  a  customer,  John  Doe,  who 
wished  to  procure  goods  on  credit ;  and  then  and  there  defend- 
ant represented  to  plaintiff  that  he  had  no  doubt  said  Doe  would 
pay  for  any  goods  he  might  buy,  and  said  Doe  then  said,  in  the 
presence  of,  and  uncontradicted  by,  defendant,  that  he,  said 
Doe,  was  worth  $5,000. 

3.  Plaintiff  believed  the  representations  of  said  defendant 
to  be  true  and  that  said  Doe  was  worth  $5,000,  and  was  then 
and  thereby  induced  to  sell,  and  did  then  sell  to  said  Doe,  a 
stock  of  general  groceries  to  the  amount  of  $1,000  upon  a 
credit  of  thirty  days. 

4.  In  fact,  said  Doe,  at  the  time  of  said  representations, 
was  insolvent,  as  the  defendant  then  knew,  and  defendant  did 


157  COMPLAINTS.  Form  167 

not  believe  that  Doe  would  pay  for  said  goods;  and  with  in- 
tent to  defraud  plaintiff,  defendant  refrained  from  informing 
plaintiff  that  said  Doe's  assertion  of  his  insolvency  was  false. 

5.  Defendant  made  said  false  representations  with  intent 
to  induce  plaintiff,  thereby,  to  sell  said  goods  on  credit,  as 
aforesaid,  and  to  defraud  him. 

6.  Said  Doe,  immediately  after  the  purchase  *of  said  goods, 
transferred  them  to  defendant,  who  received  them  in  part  pay- 
ment of  a  debt  owing  to  him  from  said  Doe  at  the  time  of 
said  purchase,  knowing  when  he  received  them  that  they  were 
the  .goods  bought  of  plaintiff  as  aforesaid,  and  that  said  Doe 
had  not  paid  for  them. 

/ .     Said  credit  given  to  Doe  has  expired  and  he  has  not  paid 
for  said  goods.     He  is  still  insolvent. 
Plaintiff  demands  $1,100  damages. 

166.  Deceit:    Fraud  in  Sale  of  Horses. 

1.  On   August   i,    1912,  plaintiff  bargained   with   defend- 
ant for  the  purchase  of  a  horse  belonging  to  defendant ;  and 
defendant,  to  induce  plaintiff  to  buy  said  horse  and  to  pay, 
$500  for  the  same,  falsely  declared  to  plaintiff  that  said  horse 
was  sound  in  wind  and  limb  and  free  from  any  defect  what- 
ever. 

2.  Plaintiff,  believing  said  statements  to  be  true  and  be- 
ing induced  thereby,  bought  said  horse  and  paid  $500  to  the 
defendant  for  the  same. 

3.  Said  horse  was  then,  in  fact,  unsound  and  then,  and  for 
a  long  time  before,  had  an  incurable  disease  called  the  glanders, 
as  defendant  then  well  knew. 

4.  Said  horse  is  unfit  for  use  and  of  no  value  and  the  plain- 
tiff has  expended  $50  in  feeding  and  taking  care  of  him  and 
endeavoring  to  cure  him  of  said  disease. 

Plaintiff  demands  $600  damages. 

167.  Deceit :    Fraud  in  the  Sale  of  a  Business. 

1.  On  May  i,  1912,  defendant  kept  a  circulating  library  and 
carried  on  the  trade  of  bookseller  and  stationer  in  a  certain 
building  in  Trenton,  and  was  possessed  of  a  lease  of  said 
building  for  the  term  of  five  years  from  January  i,  1912. 

2.  On  the  first  mentioned  day  he  offered  to  sell  to  plain- 
tiff for  $5,000,  his  interest  in  said  unexpired  lease  and  said 


Form  1 68  COMPLAINTS.  ij.s 

library  and  the  stock,  fixtures,  and  good  will  of  said  trade ;  and 
then  falsely  represented  to  plaintiff  that  the  profits  of  said  cir- 
culating library,  as  theretofore  conduced  by  defendant,  had 
been  at  the  rate  of  $500  a  year  ..and  that  the  number  of  sub- 
scribers to  said  library  was  from  300  to  400,  and  that  said 
building  and  trade,  as  heretofore  conducted  by  defendant,  pro- 
duced profits  #t  the  rate  of  $1,000  a  year. 

3.  Plaintiff  believed  said  representations  of  defendant  to 
be  true  and  was  induced  thereby  to  purchase,  and  did  pur- 
chase, of  defendant,  said  lease,  library,  stock,  fixtures  and  good 
will,  and  paid  him  $5,000  for  the  same. 

4.  In  fact,  the  profits  of  said  library  had  not  been  over  $100 
a  year.    The  number  of  subscribers  to  said  library  was  less  than 
loo,  and  said  building  and  trade  as  conducted  by  defendant 
had  not  produced  profits  at  the  rate  of  $500  a  year. 

5.  Defendant  made  said  false  representations  to  plaintiff, 
knowing  them  to  be  false  and  with  intent  to  induce  plaintiff 
to  make  said  purchase  and  to  defraud  him. 

6.  Said  lease,  library  stock,  fixtures  and  good  will  were  not 
worth  $2,000  at  the  time  of  their  purchase  by  plaintiff;  and 
plaintiff  has  sustained  great  trouble  and  expense,  viz.,  $500  in 
carrying  on  said  trade  and  endeavoring  to  dispose  of  the  same. 

Plaintiff  demands  $4,000  damages. 

168.  Ejectment:  Mesne  Profits:  Injury  to  the  Property. 
First  Count. 

1.  On  August  ist,  1911,  plaintiff  owned  and  possessed  a 
lot  of  land  in  Trenton  (describe  the  land  particularly). 

2.  Defendant,  on  that  day,  wrongfully  entered  upon  said 
land  and  dispossessed  plaintiff  and  still  keeps  him  out  of  pos- 
session, depriving  him  of  the  rents  and  profits. 

3.  Said  rents  and  profits  amount  to  the  sum  of  $1,000  a 
year. 

4.  Plaintiff's  right  to  the  possession  of  said  land  accrued  on 
August  i,  1911. 

Second  Court. 

i.     All  the  statements  of  the  first  count  are  made  part  of 
this  count. 


159  COMPLAINTS.  Form  i68b 

2.  While  defendant  was  in  possession  of  said  lands  as 
aforesaid,  he  took  down  and  destroyed  a  barn  of  the  value  of 
$500,  belonging  to  plaintiff  and  standing  thereon. 

Plaintiff  demands: 

1.  On  the  first  count,  judgment  for  possession  of  said  prem- 
ises and  $1,500  damages. 

2.  On  the  second  count,  $700  damages. 

168a.     Ejectment:     Devisee  Against  Heir. 

1.  On  August  ist,  1911,  one  John  Doe  died  seized  in  fee 
simple  of  a  tract  of  land  in   (describe  the  land  particularly). 

2.  Said  Doe  left  a  last  will  dated  May  loth,  1911,  which  was 
duly  admitted  to  probate  by  the  Surrogate  of  Hudson  County, 
on  August  2oth,  1911. 

3.  By  said  will  said  Doe  devised  the  said  land  to  plaintiff 
in  fee  simple. 

4.  James  Doe,  the  son  of  said  testator,  wrongfully  took  pos- 
session of  said  land  at  the  time  of  the  death  of  the  said  John 
Doe  and  has  ever  since  continued  in  possession  of  the  same 
and  has  wrongfully  kept  plaintiff  out  of  possession  thereof 
(depriving  him  of  the  rent  and  profits). 

(//  mcsnc  profits  arc  demanded  follow  paragraph  3  of  Form 
168.) 

(Conclude  as  in  Form  168.) 

5.  Plaintiff's  right  to  the  possession  of  said  land  accrued  on 
August  ist,  1911. 

168b.     Ejectment:     Grantee  Against  Grantor    Who    Re- 
fuses to  Surrender  Possession. 

1.  On  August  ist,  1911,  the  defendant,  being  seized  in  fee 
of  land  herein  described,  executed  and  delivered  to  plaintiff  a 
deed  of  conveyance  of  the  same  in  fee  simple. 

2.  Said  land  is  described  as  follows  (copy  the  description 
from   the  deed). 

3.  Immediately  after  the  delivery  of  said  deed  to  plaintiff, 
defendant  being  then  in  possession  of  said  land,  refused  to 
deliver  possession  thereof  to  plaintiff  and  has  ever  since  refused 
to  deliver  possession  and  has  kept  and  still  keeps  plaintiff  out 
of  possession  thereof  (depriving  him  of  the  rents  and  profits 
thereof). 


Form  169  COMPLAINTS.  160 

(//  mesne  profits  are  demanded,  follow  Paragraph  3  of 
Form  168.) 

4.  Plaintiff's  right  to  the  possession  of  said  land  accrued 
on  August  ist,  1911. 

(Conclude  as  in  Form  168.) 

169.  Against  a  Sheriff  for  an  Escape. 

1.  At  the  time  of  the  escape  hereafter  mentioned,  defend- 
ant was  Sheriff  of  the  County  of 

2.  On  the  first  day  of  March,   1912,  plaintiff  recovered, 
against  one  William  Brown,  judgment  for  $1,800  in  the  Circuit 
Court  of  said  County. 

3.  Said  action  was  brought  for  a  debt  contracted  by  means 
of  fraudulent  and  false  statements  of  the  defendant,  on  which 
the  defendant  had  been  held  to  bail  upon  a  writ  of  capias  ad 
respondendum  (or  otherwise  show  that  the  action  was  one  in 
which  an  arrest  was  proper). 

4.  On  March  loth,  1912,  a  writ  af  capias  ad  satisfaciendum 
was  duly  issued  upon  said  judgment  against  the  estate  and 
body  of  said  Brown  and  directed  and  delivered  to  the  said 
Sheriff,  the  defendant  in  this  action. 

5.  Afterwards,  on  March  I5th,  1912,  for  want  of  goods  or 
estate  of  said  William  Brown  sufficient  to  satisfy  said  execu- 
tion, defendant,  as  Sheriff,  took  the  body  of  said  Brown  and 
committed  him  to  jail  in  said  County  of  which  defendant  was 
keeper. 

0.  On  May  loth,  1912,  defendant  suffered  said  Brown  to 
escape  from  his  custody  and  from  the  jail  and  to  go  at  large 
without  consent  of  plaintiff. 

7.  Said  debt  and  costs  were  then  and  still  are  wholly  un- 
satisfied. 

Plaintiff  demands  as  damages,  $1,800  with  interest  from 
March  i,  1912. 

170.  Nuisance:     Maintaining  a  Slaughter  House. 

1.  Plaintiff  is,  and  at  the  times  hereinafter  stated  was,  the 
owner,  and  in  possession,  of  the  house  and  Lot  No.  100  State 
Street  in  the  City  of 

2.  In  the  months  of  March  and  April,  1912,  the  defendant 
erected  upon  the  adjoining  lot  No.  102  State  Street,  a  slaughter- 


101  COMPLAINTS.  Form  172 

house,  and  still  maintains  the  same;  and  from  said  day  until 
the  present  time  has  continuously  caused  cattle  to  be  brought 
and  killed  there  and  has  caused  blood  and  offal  to  be  thrown 
into  the  street  near  the  house  of  plaintiff. 

3.  Plaintiff's  house  is  now,  and  ever  since  the  beginning  of 
said  business  has  been,  thereby  rendered  uninhabitable  by  rea- 
son of  the  offensive  sounds  and  smells,  so  caused  by  defend-, 
ant. 

Plaintiff  demands  $1,000  damages. 

171.  Nuisance,  by  Fouling  a  Stream. 

1.  On  May  ist,  1911,  plaintiff  owned,  and  ever  since  to 

the  present  time,  has  owned  a  farm  in  the  township  of 

County  of through  which  flows  and  has  ever  flowed 

a  stream  known  as  Dale  Brook. 

2.  At  that  time  defendant  owned  and  ever  since  then  until 
the  present  time,  has  owned  a  mill  on  said  brook  at  a  point 
above  plaintiff's  farm ;  and  at  that  time  he  began  to  use  the 
same  as  a  paper  mill. 

3.  In  the  use  of  said  mill,  ever  since  said  day  defendant 
has  employed  and  still  employs,  for  cleaning  rags,  sundry  nox- 
ious chemical  substances  and  fluids,  and  after  they  were  so 
employed  has  allowed  and  still  allows  the  same  to  be  thrown 
into  or  mixed  with  the  water  of  said  brook,  whereby  said  water 
has  been  greatly  fouled. 

4.  Before  such  use  of  said  mill,  plaintiff  had  always  wat- 
ered his  cattle  at  said  brook,  and  had  also  carried  the  water 
therefrom  to  his  house  by  pipes,  and  used  it  there  for  his  domes- 
tic, purposes. 

5.  Since  said  use  of  said  mill  and  the  fouling  of  said  water, 
the  water  of  the  brook,  where  it  enters,  and  throughout  its 
course  through  the  plaintiff's  farm  has  become  and  is  so  foul 
and  unwholesome  that  he  has  been,  and  is,  unable  to  use  it 
either  for  his  cattle  or  for  his  domestic  purposes. 

Plaintiff  demands  $1,000  damages. 

172.  Waste:     Injury  to  Reversion. 

i.  On  April  ist,  1912,  plaintiff  was,  and  ever  since  has 
been,  the  owner  in  fee  of  a  tract  of  land  in  the  township  of 

.'.County  of ,  bounded  North  by  the 

Daletown  road,  east  and  south  by  land  of  A.  B.,  and  west  by 
the  land  of  C.  D. 


Form  173  COMPLAINTS.  162 

2.  Plaintiff,  by  a  lease,  of  which  a  copy  is  hereto  annexed, 
let  said  land  to  defendant  for  six  years  from  that  date,  and 
defendant  entered  upon  said  land  at  the  commencement  of 
said  term  and  has  ever  since  occupied  the  same  under  said 
lease. 

3.  On  November  ist,  1912,  and  on  other  days  thereafter, 
and  before  this  action,  the  defendant,  without  authority,  cut 
down  loo  trees  upon  said  premises  of  the  value  of  $200,  and 
dug  up  100  cubic  yards  of  soil  of  the  value  of  $50,  and  carried 
said  trees  and  soil  away. 

4.  Plaintiff  was  thereby  injured  in  his  reversionary  estate 
in  the  premises. 

Plaintiff  demands  $250  damages. 

173.     For  Diverting  Water  from  a  Mill. 

1.  Before  and  at  the  times  herein  stated,  plaintiff  was,  and 
ever  since  has  been,  possessed  of,  certain  iron  and  tin  works, 

with  the  appurtenances,  at ,  in  the  County  of 

near  a  certain  water  course,  and  therein  carried  on  the  busi- 
ness of  manufacturing  tin  plates. 

2.  Said  water  course,  before  and  at  said  times  had  flowed 
and  had  been  used  of  right  to  flow,  in  great  abundance  to  said 
works  of  the  plaintiff,  for  supplying  the  same  with  water  neces- 
sary for  the  working  thereof. 

3.  On  May  loth,  1912,  and  on  divers  other  days,  between 
that  time  and   the  beginning  of  this   action,   the   defendant 
wrongfully  diverted  large  quantities  of  water  of  said  water 
course  out  of  the  same  and  away  from  the  works  of  the  plain- 
tiff. 

4.  By  reason  of  said  wrongful  acts,  the  water  of  said  water 
course  sufficient  for  supplying  said  works  during  that  time, 
could  not,  and  did  not,  flow  as  the  same  would  otherwise  have 
done;  and  the  plaintiff,  for  want  of  sufficient  water,  during 
that  time,  could  not  use  said  works  nor  carry  on  his  said  busi- 
ness therein  as  he  would  otherwise  have  done. 

5.  By  reason  of  said  wrongful  acts,  plaintiff  during  all 
that  time  was  deprived,  in  large  part,  of  the  use  of  said  works 
and  of  the  profit  which  he  otherwise  might  and  would  have 
made,  by  carrying  on  his  trade  therein. 

Plaintiff  demands  $5,000  damages. 


163  COMPLAINTS.  Form  175 

174.  Easement:     Obstruction  of  a  Private  Way. 

1.  On  May   ist,    1912,  plaintiff  was,  and  ever  since  has 
been,  lawfully  possessed  of  a  certain  tract  of  land  in  the  town- 
ship of County  of  Union,  bounded    (describe  land 

sufficiently  to  identify  it),  which  land  adjoined  land  of  de- 
fendant on  the  west,  and  had  a  right  of  way  from  his  said  land 
over  the  land  of  defendant  to  the  public  road,  called  the  "Rah- 
way  Road,"  to  pass  and  repass  on  foot  and  with  horses  and 
vehicles,  freely  at  all  times. 

2.  On  that  day,  defendant  built  a  fence  across  said  way  and 
at  all  times  thereafter  maintained,  and  still  does  maintain  said 
fence ;  whereby  the  plaintiff  from  that  day  hitherto  has  been 
prevented  from  using  the  said  way. 

Plaintiff  demands  $1,000  damages. 

175.  Easement:    Obstruction  of  a  Public  Way. 

1.  At  the  time  of  the  grievances  herein  stated,  plaintiff  was, 
and  ever  since  has  been,  the  owner  in  fee  of  a  tract  of  land 

in  the  township  of County  of 

bounded  (describe  land  sufficiently  to  identify  it),  which  land 
adjoins  land  of  defendant  on  the  west. 

2.  For  many  years  last  past  the  public  had,  and  still  has  a 
right  of  way  over  the  land  of  defendant  adjoining  said  land 
of  plaintiff  and  leading  over  the  defendant's  land  to  the  high- 
way known  as  Main  street,  to  pass  and  repass  freely  at  all 
times  on  foot  and  with  horses  and  vehicles. 

• 

3.  On   March   ist,   1912,   defendant  erected  a  stone  wall 
across  said  public  way  at  its  entrance  upon  said  Main  street, 
and  has  ever  since  maintained  the  same. 

4.  Before  said  day,  and  thence  hitherto,  the  plaintiff  car- 
ried on  the  business  of  market-gardener,  on  his  said  lands, 
and  could  pass  and  repass  from  his  place  of  business  to  said 
Main  street  only  by  using  said  public  way ;  and  a  large  part 
of  his  customers  could  reach  his  place  of  business  only  by 
passing  over  said  public  way. 

5.  During  all  said  time  since  March  i,  1912,  plaintiff  has 
been  prevented  by  said  acts  of  defendant  from  enjoying  said 
public  way  and  has  also,  thereby,  been  greatly  injured  in  his 
said  business. 

Plaintiff  demands  $700  damages. 


Form  176  COMPLAINTS.  164 

176.  Mischievous  Animals :     Knowingly  Keeping  a  Fierce 
Dog. 

1.  At  and  for  a  long  time  before  the  time  herein  stated, 
defendant  wrongfully  kept  upon  his  premises  No.   10  Bank 
Street,  in  the  Town  of a  dog  of  a  fierce  and  mis- 
chievous   nature,    well    knowing   that    said    dog   was   of   such 
nature,  and  accustdmed  to  bite  human  beings. 

2.  On  June  10,  1912,  in  said  town,  the  said  dog,  while  de- 
fendant so  kept  him,  attacked  and  bit  plaintiff ;  whereby  plain- 
tiff was  wounded  and  so  remained  for  a  long  time. 

3.  (State  special  damages,  if  any.) 
Plaintiff  demands  $ damages. 

177.  Wrongful  Distress. 

1.  At  the  time  herein  stated,  plaintiff  was  tenant  to  de- 
fendant of  a  house  and  lot  No.  10  Fulton  Street  in  the  City 

of at  a  rent  of  $20  a  month,  payable  on  the  first 

of  each  month  by  plaintiff  to  defendant. 

2.  On  June  10,  1912,  during  said  term,  defendant  wrong- 
fully distrained  on  said  premises,  sundry  goods  of  the  value  of 
$ ,  of  the  plaintiff,  as  a  distress  for  pretended  ar- 
rears of  said  rent  alleged  to  be  due  on  June   i,   1912,  and 
wrongfully  sold  said  goods  as  such  distress. 

3.  At  the  time  of  making  said  distress  and  of  said  sale  no 
rent  was  due  or  in  arrear  for  the  said  premises. 

Plaintiff  demands  $ damages. 

178.  Replevin:      Against    Pawn    Broker    for    Return    of 
Pledge;  Alternatively,  for  Damages  for  Its  Conver- 
sion. 

1.  In  October,  1911,  in  Newark,  in  consideration  of  money 
lent  to  plaintiff  by  defendant,  plaintiff  delivered  to  defendant, 
by  way  of  pledge  for  said  loan,  a  gold  watch,  being  the  prop- 
erty of  plaintiff,  to  be  re-delivered  to  plaintiff  on  his  re-paying 
the  said  loan  with  interest. 

2.  On  December  roth,  1911,  plaintiff  repaid  the  defendant 
the  amount  of  said  loan  with  interest. 

3.  Defendant    refused    to   deliver    said   watch   to   plaintiff 
upon  making  said  payment  and  still  refuses  so  to  do,  although 
plaintiff,  at  Newark,  demanded  possession  thereof  before  the 
writ  was  served  in  this  action. 


165  COMPLAINTS.  Form  180 

Plaintiff  demands  possession  of  said  watch,  or,  if  it  can  not 
be  returned,  then  $500  damages. 

NOTE  :  The  foregoing  form  of  complaint  for  the  possession 
of  chattels  may  be  used  «•///;  an  ordinary  writ  of  summons  (not 
a  zvrit  of  replevin}  in  lieu  of  the  old  action  of  detinue. 

179.  Replevin:     Plaintiff  Claiming  a  General  Property  in 
the  Goods. 

1.  On  January  ist,  1912,  plaintiff  was,  and  ever  since  has 
been,  the  owner  of  the  following  goods  and  chattels,  to  wit: 
one  bay  mare  of  the  value  of  $200,  and  one  top  buggy  and  har- 
ness of  the  value  of  $150  (or,  refer  to  a  schedule  annexed  con- 
taining a  list  of  the  goods). 

2.  On  that  day  plaintiff  was,  and  ever  since  has  been,  law- 
fully entitled  to  the  immediate  possession  of  the  same. 

3.  On  that  day,  at  the  barn  No.  10 street  in 

Trenton,  defendant  wrongfully  took  said  goods  and  chattels 
from  the  possession  of  the  plaintiff  and  has  ever  since  wrong- 
fully detained,  and  still  wrongfully  detains,  the  same. 

Plaintiff  demands  possession  of  said  goods  and  chattels  and 
$100  damages  for  their  detention. 

ALTERNATIVE  CLAIM  FOR  RETURN  OR  DAMAGES. 
The  plaintiff  demands  possession  of  said  goods  and  chattels, 
or  in  case  they  cannot  be  returned  to  the  plaintiff,  then  $600 
damages  for  their  value,  and  $100  damages  for  their  deten- 
tion. 

180.  Replevin:      Plaintiff    Claiming   a    Special    Property 
in  the  Goods. 

1.  On   January    loth,    1912,    defendant   was    indebted   to 
plaintiff  in  the  sum  of  $500,  evidenced  by  the  defendant's  note 
of  said  date  payable  to  plaintiff  or  order  on  demand. 

2.  On  that  day,  defendant  delivered  to  plaintiff,  in  pledge 
as  security  for  the  payment  of  said  note,  one  Steinway  "grand" 
piano  then  owned  by  defendant  and  of  the  value  of  $600. 

3.  Said  note  has  not  been  paid. 

4.  On   the  first  day  of  April,   1912.  at   No street  in 

Trenton,  defendant  wrongfully  took  said  piano  from,  and  out 
of,  plaintiff's  possession,  and  ever  since  has  wrongfully  de- 
tained and  still  wrongfully  detains  the  same  from  plaintiff. 


Form  181  COMPLAINTS— NOTICE  TO  STRIKE  OUT.  166 

Plaintiff  demands  possession  of  said  piano  and  $100  dama- 
ges. 

181.  Replevin:    For  Unlawful  Detention,  When  the  Tak- 
ing Was  Lawful. 

1.  On  January  2Oth,  1912,  plaintiff  owed  defendant  $500 
evidenced  by  plaintiff's  note  of  that  day  payable  to  defendant 
or  order  on  demand. 

2.  On  that  day,  at  Trenton,  plaintiff  delivered  to  defend- 
ant in  pledge,  as  security  for  the  payment  of  that  note,  one 
Steinway  "grand"  piano  then,  and  ever  since,  owned  by  the 
plaintiff,  of  the  value  of  $600. 

3.  Plaintiff  paid  said  note  on  April  ist,  1912. 

4.  On  April  loth,  1912,  and  before  serving  the  writ  in  this 
action,  at  Trenton,  plaintiff  demanded  of  defendant  the  re- 
turn   of   said    piano   to    plaintiff. 

5.  Defendant  then  and  there  wrongfully  refused  to  deliver 

said  piano  to  plaintiff  and  then  in  the  house  No.  100 

street   in   Trenton,   wrongfully   detained   and   still   wrongfully 
detains  the  same. 

Plaintiff  demands  possession  of  said  piano,  or  in  case  it 
cannot  be  returned  to  plaintiff,  then  $600  damages  for  its 
value  and  $100  damages  for  its  detention. 

182.  Notice  of  Motion  to  Strike  Out  Under  Rule  26. 
(Title.) 

To ,   attorney   of   plaintiff : 

TAKE  NOTICE  that  on  the day  of 

inst.  at  ten  o'clock  in  the  forenoon,  at  the  Court  House  in 

Newark,  before  the  Honorable ,  Justice  (or, 

Judge)  of  the  above  stated  Court,  I  shall  move  to  strike  out 
the  complaint  filed  in  this  case,  upon  the  ground  that  it  dis- 
closes no  cause  of  action,  in  that  (specify  the  particulars  in 
which  the  statement  of  the  cause  of  action  is  defective). 

Dated,    Newark 1912. 

(Signed) 

Attorney  of  defendant. 

NOTE:  The  motion  may,  of  course,  be  made  in  open  Court, 
if  the  applicant  so  elect;  in  ivhich  case  the  above  form  should 
be  modified  accordingly. 


167  ANSWERS.  Form  184 


Answers. 

183.     Commencement  of  Answer.     Joint  Answer. 
(FROM  SCHEDULE  B.,  MODIFIED.) 
Supreme  Court  of  New  Jersey. 

Hudson  County. 
A.  B.  and  others, 

Plaintiffs,     / 

vs-  \   Answer. 

C.  D.  and  others,  I 

Defendants.     / 

Defendants   (state  the  several  names  and  residences)   say 
that: 

(To  be  filled  up  in  accordance  with  the  folloiving  forms.) 
(Signed) 


Attorney  for  Defendant. 

NOTE:  When  one  of  several  defendants  has  a  separate 
and  independent  defence,  he  should  answer  separately.  Under 
the  former  practice  he  could  file  a  separate  pica.  Stephen's 
PI-  357- 

184.  Commencement  of  a  Separate  Answer  by  One  of 
Several  Defendants,  who  is  Sued  by  the  Wrong 
Name. 

COURT. 

John  Doe, 

Plaintiff, 

Separate  Answer 

„.  ,  of  Richard  Poe. 

Richard   Row,    et   als., 

Defendants. 

Defendant  Richard  Poe  residing  in  Newark,  who  has  been 
sued  in  this  action  by  the  name  of  Richard  Row,  answering 
separately,  say  that: 


Form  185  ANSWERS.  168 

185.     Commencement  of  Answer  by  Infant  Defendant. 

COURT. 

(State  venue  if  action  is  in  Supreme  Court.} 
John  Doe, 


Plaintiff, 


vs. 


Answer. 


Richard  Roe, 

Defendant. 

The  defendant,  Richard  Roe,  residing  in  Newark,  by  A.  B. 
residing  in  Newark,  who  was  admitted  by  the  Court  as  the 
guardian  ad  litem  of  this  defendant  who  is  an  infant  within  the 
age  of  twenty-one  years,  says: 

186.     Objections  in  Point  of  Law  (Under  Rule  26) . 

(NOTE:  The  objection  should  be  stated  as  a  separate  i.  e.  as 
a  First,  Second  or  other  Defense.) 

(i) 

Defendant  will  object  that  the  complaint  discloses  no  cause 
of  action.  It  fails  to  show  that  (specify  the  particulars  in 
which  the  statement  of  the  cause  of  action  is  defective}. 

(2) 

Plaintiff  (or,  defendant)  will  object  that  parole  evidence 
is  not  admissible  to  vary  the  said  written  agreement,  and  will 
also  rely  on  Section of  the  Statute  of  Frauds. 

(3) 

Defendant  will  object  that  the  special  damage  claimed  in 
the  complaint  is  too  remote. 

(4) 

Defendant  will  object  that  the  words  stated  in  the  com- 
plaint are  not  actionable  without  proof  of  special  damage,  and 
that  none  is  alleged. 

(5) 

Defendant  will  object  that  the  words  complained  of  are 
incapable  of  any  of  the  meanings  stated  in  the  complaint  or  of 
any  other  actionable  or  defamatory  meaning. 


169  ANSWERS.  Form  190 

187.     Answer  with  Counter-Claim. 

(FROM    SCHEDULE  B.) 
(Title.) 

Defendant    (state   residence)    says   that: 

1.  He  admits  the  first  paragraph; 

2.  He  denies  the  second  paragraph. 

3.  (To  be  filled  up.) 

By  way  of  counter-claim  against  the  plaintiff  and  against 
X.  Y.,  a  third  party,  defendant  says  that: 

1.  He  repeats  the  statements  in  paragraph  3  above. 

2.  (To  be  filled  up.) 

The    defendant   counter-claims   $ damages. 

(Signed) 


Attorney  for  Defendant. 

188.  General  Denial. 

(FROM    SCHEDULE  B.) 

He  denies  the  truth  of  the  matters  contained  in  the  com- 
plaint. 

189.  General  Denial  with  New  Matter. 

(FROM    SCHEDULE  B.) 

1.  He  denies  the  truth  of  the  matters  contained  in  the 
complaint. 

2.  On  March  i,  1911,  plaintiff  executed  and  delivered  to 
defendant  a  release,  under  seal,  discharging  all  demands  then 
existing  in  fovor  of  plaintiff  against  defendant. 

190.  Several  Defenses. 

(FROM  SCHEDULE  B.) 
First  Defense  to  First  Count: 

1.  On  May   i,   1911,  defendant  assigned  and  delivered  to 
plaintiff  a  due  bill  of  John  Doe  for  $500,  which  plaintiff  ac- 
cepted as  a  full  satisfaction  of  the  demand  set  up  in  the  first 
count  of  the  complaint. 

Second  Defense   to  First   Count: 

2.  On  July  i,   1911,  plaintiff  signed,  sealed  and  delivered 
to   defendant,   a   release   of   all   demands   of   plaintiff   against 
defendant  to  that  date. 


Form  191  ANSWERS.  170 

Defense  to  Second  Count: 

1.  He  denies  the  first  paragraph  of  this  count. 

2.  As  to  the  statements  in  the  second  paragraph,  defend- 
ant has  not  any  knowledge  or  information  thereof  sufficient 
to  form  a  belief. 

3.  He  denies  the   fourth  paragraph  of  this  count  except 
so  far  as  admitted  "in  the  following  statement: 

The  plaintiff  received  (etc.  stating  the  facts  as  set  up  by  de- 
fendant) . 

191.  Unauthorized  Acceptance  in  Name  of  Corporation, 
and  Want  of  Consideration. 

First  Defense. 

1.  John  Styles,  who  accepted  said  bill  in  defendant's  name, 
had  no  authority  to  accept  bills  for  defendant,  and  said  ac- 
ceptance was  made  without  the  authority  or  consent  of  de- 
fendant, and  out  of  the  course  of  its  regular  business. 

2.  Said   acceptance  was  made   without  any   consideration 
moving  to  defendant. 

Second  Defense. 

1.  Said  acceptance  was   for  the   accommodation  of  John 
Doe. 

2.  Said  Doe  endorsed  said  bill  and  delivered  the  same  to 
plaintiff  after  its  maturity;  and  prior  to  such  indorsement, 
plaintiff  had  notice  of  the  facts  stated  in  the  foregoing  para- 
graph. 

192.  Acceptance  Was  for  Plaintiff's  Accommodation. 

1.  Defendant    accepted    the    bill    mentioned    in    the    com- 
plaint, for  the  accommodation  of  plaintiff  and  there  was  never 
any  value  or  consideration  for  the  acceptance  or  payment  of 
said  bill  by  defendant. 

(Adding  when  the  plaintiff  is  an  indorsee)  : 

2.  Said  bill  was  indorsed  to  plaintiff,  and  he  always  held 
the  same,  without  any  consideration. 


171  ANSWERS.  Form  194 

193.  The  Note  Was  for  Goods  Sold  by  Fraud. 

1.  On  July  loth,  1912,  in  Trenton,  plaintiff  was  engaged 
in  business  as  a  retail  grocer  and  was  offering  to  sell  out  his 
stock  fixtures  and  good-will  of  his  said  business. 

2.  Plaintiff  then  and  there,  in  order  to  induce  defendant 
to  purchase  the  same,  did,  with  intent  to  deceive  and  defraud 
defendant,  falsely  and  fraudulently  represent  to  him  that  said 
business,  as  theretofore  conducted  by  plaintiff,  was  a  profit- 
able business,  and  that  the  net  proceeds  thereof  realized  by 
him   during  the  year   ending  July    ist,    1912,   had   exceeded 
$3,000. 

3.  Defendant,   relying  on  said   representations,   purchased 
of  the  plaintiff  said  stock,  fixtures  and  good-will,  and  gave 
in  payment  therefor  the  note  mentioned  in  the  complaint. 

4.  Said  representations  were  false,  and  plaintiff  then  knew 
them   to  be   false.      Said  business   was   not,   and   never   had 
been   a   profitable   business.      Plaintiff  had   not   realized   any 
profit  whatever  from  the  same  during  the  year  ending  July 
1st,  1912. 

5.  Said    note   was   given   to   plaintiff    without   any    other 
consideration  than  said  sale. 

6.  Defendant    has    never    realized    any    profits    from    said 
business. 

7.  Immediately  on  discovering  said  fraud,  defendant  re- 
scinded said  contract  of  said  sale,  and  tendered  to  plaintiff 
all  that  defendant  had  received  under  said  contract,  upon  con- 
dition of  his  returning  said  note,  which  plaintiff  refused  to  do. 

194.  The   Note  was  for  Accommodation  and  was   Mis- 
applied. 

1.  The  note  described  in  the  complaint  was  given  by  de- 
fendant to  the  payee  therein  named  without  any  other  con- 
sideration than  herein  stated. 

2.  Defendant  had  made  his  promissory     note  for  $2,000. 
dated  May  15,  1912,  to  said  payee  without  consideration  and 
solely   for  the   accommodation   of  said  payee   and   upon   his 
promise  to  take  up  and  pay  the  same  at  maturity. 

3.  Said  note  fell  due  on  August   I5th,   1912,  and,  at  the 
request  of  said  payee,  defendant  then  gave  him  the  note  in 
suit,   for  the  special   purpose   of  enabling  him  therewith   to 
take  up  and  renew  said  first  note  of  $2,000,  he  paying  the 


Form  195  ANSWERS.  172 

balance;  and  upon  the  agreement  with  him  that  it  should  be 
so  used  and  not  otherwise. 

4.  Plaintiff,    having    a    claim    then    over-due    against    said 
payee,    said   payee   wrongfully   diverted   said    note    from   the 
purpose  for  which  it  was  given,  and  fraudulently  misapplied 
the  same,  by  giving  it  to  the  plaintiff  as  collateral  security  for 
said  claim. 

5.  Plaintiff  received  the  note   in  suit,   with   notice  of  the 
foregoing  facts,  and  as  collateral  security  for  an  antecedent 
debt,  and  without  paying  any  consideration  therefor. 

(6.     Paragraphs  one,   four  and  five  of  the  complaint  are 
denied.) 

195.  That  Note  was  Given  to  Compound  a  Crime. 

1.  On  May  ist,   1912,  at  Camden,  one  John  Doe,  son  of 
defendant,  had  stolen  and  taken  away  a  horse,  being  the  prop- 
erty of  plaintiff. 

2.  Defendant,  in  order  to  compound  said  crime,  gave  the 
note    mentioned    in    the    complaint,    upon    the    agreement    of 
plaintiff  to  desist  from  giving  any  information  or  making  any 
complaint  of  said  crime. 

196.  Note  was  for  Illegal  Sale  of  Liquor. 

1.  The  consideration   for  the  note  mentioned  in  the  com- 
plaint  was    the    illegal    sale    of    intoxicating    liquors    sold    by 
(the  payee)   to  defendant  at  Jersey  City. 

2.  Said   (seller),  at  the  time  of  such  sale,  had  no  license 
for  the  sale  thereof  as  required  by  law. 

3.  Said   note   was   transferred   to   plaintiff   after   maturity 
(and  with  notice  of  the  foregoing  facts). 

197.  Non-Presentment  of  Note  at  Place  of  Payment. 

1.  The  note  on  which  this  action  is  founded  is  payable  at 
the  First  National  Bank  of  Jersey  City. 

2.  When  the  note  fell  due,  defendant  had,  and  ever  since 
has  had,  money  sufficient  for  its  payment  deposited  with  said 
bank  and  ready  to  be  applied  to  its  payment  on  presentation 
of  the  note  there. 

3.  Said  note  has  never  been  presented  at  said  bank,  for  pay- 
ment. 


1?:}  ANSWERS.  Form  193 

4.  Defendant  is,  and  always  has  been,  ready  and  willing 
to  pay  said  note  according  to  its  tenor  and  effect,  and  offers 
to  bring  into  court  here  the  money  for  its  payment,  to  wit. 
$1,000. 

198.  Accord  and  Satisfaction. 

On  May  ist,  1912,  after  making  the  contract  (or,  other 
instrument)  and  the  alleged  breach  thereof  (or,  after  com- 
mitting the  supposed  grievances),  stated  in  the  complaint,  de- 
fendant delivered  to  plaintiff,  and  the  plaintiff  accepted  and 
received  from  defendant,  a  grand  piano  in  full  satisfaction 
of  all  damages  sustained  by  the  plaintiff  by  reason  of  the  facts 
alleged  in  the  complaint. 

199.  Defendant  Indorsed  as  Agent,  Where  the  Complaint 
Stated  the  Contract  Untruly  in  this  Respect. 

1.  Paragraphs  three  and  four  (or  other  paragraphs  which 
state  the  note  and  indorsement)   are  denied  except  so  far  as 
hereinafter  admitted. 

2.  The  following  is  a  true  copy  of  the  note,  on  which  this 
action  is  brought   (copy  note  and  indorsement  zvith  the  addi- 
tion of  "Treasurer  of  the  Union  Oil  Co.,"  to  defendant's  sig- 
nature). 

3.  At  the  time  of  the  making  and  indorsement  of  the  said 
note,  defendant  was  the  treasurer  of  the  Union  Oil  Company, 

a  corporation, ;  and  was  authorized  by 

it  to  receive  said  note  and  to  indorse  the  same  to  plaintiff,  as 
such   treasurer,   of   all   which    facts   plaintiff   had   notice. 

4.  Said  corporation  was  at  the  time  of  said  indorsement, 
indebted  to  plaintiff  in  the  sum  of  about  $1,000,  for  goods  fur- 
nished   by   plaintiff   to    said   corporation,   and    said   note    was 
received   and   indorsed  by  defendant  as   such  treasurer,   and 
not  in  his  individual  capacity,  and  was  received  by  plaintiff 
so  indorsed,  as  an  obligation  of  said  corporation  on  account 
of  said  debt  due  to  him  from  said  corporation  only. 

5.  The   defendant   received   no   consideration   for   said   in- 
dorsement. 


Form  200  ANSWERS.  174 

200.  Alteration  of  Instrument. 

After  the  making  and  delivery  of  said  note  it  was  materially 
altered,  by  plaintiff,  without  the  consent  of  defendant,  by 
cutting  off  the  signature  of  John  Styles  who  was  a  joint 
maker  thereof  (or,  by  adding  the  words  "payable  at  the  First 
National  Bank  of  Newark,  N.  J.,"  or  othernrise,  according  to 
the  facts}. 

201.  Invalidity  of  an  Award. 

(See  Form  102.) 

1.  Paragraph  one  is  admitted. 

2.  Defendant  has  no  knowledge  or   information   sufficient 
to  form  a  belief  that  the  arbitrators  made  an  award  (in  writ- 
ing, under  their  hands,  and  delivered  the  same  to  the  plain- 
tiff) within  the  time  limited  therefor. 

3.  Defendant  had  no  notice  of  the  time  or  place,  when  or 
where  said  arbitrators  would  meet  to  hear  the  matter  sub- 
mitted  to  them,   and  no   opportunity   of   appearing  or  being 
heard  in  his  defense  before  them. 

4.  On   May    loth,   and   while   preparing   their   award,   or 
immediately  prior  thereto,   the  arbitrators   examined   several 
witnesses  touching  the  matter  submitted  to  them,  and  heard 
their  statements  in  respect  thereto,  in  the  presence  of  plaintiff, 
and   in  the   absence   of  defendant,   without   his   consent   and 
without  any  notice  to  him. 

202.  Bailment:     Denial  of  Plaintiff's  Title. 

1.  Paragraph  three   (that  alleging  plaintiff's  title}    is  de- 
nied. 

2.  Said  (article  bailed}  was  the  property  of  one  Richard 
Fen,  of  Trenton,  and  he  was  entitled  to  its  possession  when 
this  action  was  brought. 

3.  Before  the  commencement  of  this  action,  defendant  had 
delivered  the  same  to  said  Fen  upon  his  demand. 

203.  To  a  Complaint  for  Breach  of  Promise :    That  Plain- 
tiff was  Unchaste. 

1.  At  the  time  mentioned  in  the  complaint  as  the  time  of 
the  alleged  promise,  the  plaintiff  was  lewd  and  unchaste. 

2.  Defendant  was  wholly  ignorant  of  that  fact  at  that  time. 


175  .  ANSWERS.  Form  207 

3.     Upon  being  informed  thereof,  and   for  that  cause,  he 
refused  to  marry  plaintiff. 

204.  Payment  by  Note. 

1.  On  October   ist,   1912,  defendant  paid  plaintiff  $1,000 
in  cash,  and  also  gave  him  defendant's  note  for  $1,000,  of  that 
date,  payable  to  plaintiff  or  order,  six  months  from  date. 

2.  Thereupon  plaintiff  accepted  said  note  as  payment  of 
the  balance  then  due  to  him  in  respect  to  the  matters  alleged 
in  said  complaint,  and  gave  defendant  a  receipt  in  full  of  all 
demands  to  that  date. 

205.  To  an  Action  Against  Carrier  for  Injury  to  Goods: 

That  the  Damage  was  by  Plaintiff's  Fault. 

1.  The  box  of  glass  mentioned  in  the  complaint,  was  not 
marked   by   plaintiff,   as   being  glass,   when   delivered   to   de- 
fendant. 

2.  Said  box  did  not  bear  any  indication  of  the  character 
of  its  contents. 

3.  Defendant  did  not  have  any  notice  of  its  contents. 

4.  Defendant  stowed  said  box  in  his  vessel  with  due  care, 
and  in  a  manner  which  would  not  have  injured  its  contents 
had  they  not  been  glass. 

206.  Compromise. 

1.  Before  this  action,  plaintiff  having  demanded  said  sum 
(or,  said  goods)    from  the  defendant,  the  defendant  refused 
to  pay  the  same  because   (here  state  the  facts  showing  the 
claim  to  have  been  a  doubtful  one}. 

2.  The  parties  thereupon  agreed  to  compromise  said  claim, 
and  that  defendant  should  pay,  and  plaintiff  accept,  $500  in 
satisfaction  thereof. 

3.  On  July   1st,   1912,  defendant  so  paid,  and  plaintiff  so 
accepted,  that  sum  of  money. 

» 

207.  Ultra  Vires,  by  a  Corporation. 

i.  The  plaintiff  (or,  .said  company)  was  not  authorized 
by  law  to  take,  hold  or  convey  real  property,  except  for  the 
following  purposes  and  in  the  following  manner:  (here  set 
forth  the  powers  of  the  corporation  relating  to  the  taking,  hold- 
ing or  conveying  real  estate}. 


Form  208  ANSWERS.  .    176 

2.  The  deed  stated  in  the  complaint  was  executed  by  the 
grantor  and  accepted  by  said  corporation  for  the  purpose  of 
(here  state  purposes  and  manner,  not  within  the  power}. 

208.  Ultra  Vires;  Note  Taken  by  a  Corporation  Outside 
Its  Power. 

1.  At  the  times  mentioned  in  the  complaint,  plaintiff  was 

a  corporation  created  by  the   State  of doing 

business  in  New  Jersey,  and  incorporated  for  the  purpose  of 
carrying  on  the  business  of  Mutual  Life  Insurance  and  for  no 
other   purpose.     A  copy  of  the  charter   of   said  company   is 
hereto  annexed. 

2.  By  the   second  section  of  its  charter,   it  was  provided 
that  all  persons  who  should  insure  in  the  corporation  should, 
while  they  continued  so  insured,  be  deemed  to  be  members  of 
the  corporation ;  and  by  the  sixth  section  it  was  provided  that 
it  should  be  lawful  for  the  corporation  to  take  the  notes  of 
the  members  for  a  certain  proportion  of  the  premium  of  in- 
surance due  from  them ;  but  that  said  corporation  should  never 
exercise  any  banking  powers. 

3.  The  notes   stated   in  the  complaint  were   executed  by 
defendant  for  the  accommodation  respectively  of  John  Doe 
and  Richard  Roe,  named  in  the  complaint,  who  indorsed  them 
to   plaintiff,    which   discounted    the    same    in   violation    of   its 
charter. 

209.  Married  Women's  Act. 

1.  At  the  time  of  making  the  alleged  contract  mentioned  in 
the  complaint,  defendant  was  the  wife  of  John  Doe  of  Newark. 

2.  Said   contract    was    made   by    defendant   as    surety    for 
Richard   Fen ;  and  defendant  did  not  obtain,   directly  or   in- 
directly, any  money,  property  or  other  thing  of  value  for  her 
own  use,  or  for  the  use,  benefit  or  advantage  of  her  separate 
estate  on  the  faith  of  said  contract  or  in  consideration  thereof 

210.  Denial  that  Credit  has  Expired. 

Said  sale  was  made  upon  a  credit  of  six  months  from  July 
1st,  1912,  which  had  not  expired  at  the  commencement  of 
this  action. 


177  ANSWERS.  Form  214 

• 

211.  Discharge  in  Bankruptcy. 

(See  Rev.  Stat.  of  the  United  States,  Sec.  5119.) 

1.  On  May  ist,  1911,  defendant  filed  in  the  District  Court 
of  the  United  States  for  the  District  of  New  Jersey,  a  petition 
to  be  adjudicated  a  bankrupt  under  the  laws  of  the  United 
States. 

2.  On  June  ist,  1912,  said  court  duly  granted  to  defendant 
a  discharge  in  bankruptcy,  a  copy  of  which  is  hereto  annexed. 

3.  The  indebtedness  alleged  in  the  complaint  accrued  before 
(or,  the  contract  alleged  in  the  complaint  was  made  before) 
the  filing  of  said  petition. 

212.  Duress  by  Imprisonment. 

Defendant,  at  the  time  of  making  said  (contract)  was  im- 
prisoned by  plaintiff  (and  others  in  collusion  with  him),  and 
then  and  there  detained  until,  by  force  and  duress  of  imprison- 
ment, defendant  made  and  delivered  the  same. 

213.  Duress  by  Threats. 

The  instrument  mentioned  in  the  complaint  was  obtained 
from  defendant  by  plaintiff  (and  others  in  collusion  with  him), 
by  duress  of  defendant,  in  threatening  the  defendant  with 
bodily  harm,  endangering  his  life  (state  the  general  nature  of 
the  duress  according  to  the  facts),  in  consequence  of  which 
and  in  fear  thereof,  defendant  executed  said  instrument. 

214.  The  Delivery  was  in'Escrow. 

1.  Defendant  gave  said  deed  (or  other  ivriting)  to  secure 
the  repayment  of  $1,000  then  lent  by  plaintiff  to  one  John 
Doe  of  Newark. 

2.  Defendant  delivered  said  deed,  not  to  plaintiff  or  his 
agent,  but  to  one  John  Stiles  as  an  escrow  to  be  kept  by  him 
upon  condition  that  if  said   Doe  should,  within   six  months, 
secure  the  repayment  of  said  sum  to  plaintiff  by  a  mortgage 
upon  his  farm,  then  said  deed  to  be  immediately  canceled  and 
returned  to  defendant;  and  that  said  deed  should  take  effect 
only  in  case  of  default  of  said  Doe  in  so  securing  the  repay- 
ment of  said  sum. 

3.  Within  the  time  agreed,  to  wit,  on  May  ist,  1912,  said 
Doe  did  secure  the  repayment  of  said  sum  to  plaintiff  by  a 


Form  215  ANSWERS.  178 

mortgage  upon  said  farm,  which  mortgage  the  plaintiff  then 
accepted  as  such  security ;  whereby  the  deed  of  defendant, 
so  delivered  in  escrow,  became  void. 

215.  Partial  Failure  of  Consideration. 

1.  The  goods  mentioned  in  the  complaint,  for  the  price  of 
which  this  action  was  brought,  consisted  of  certain  machinery 

for  the  manufacture  of An  essential  part  of 

said   machinery  was   a   pinion   called  the pinion, 

without  which  said  machinery  could  not  be  operated. 

2.  The  said  pinion  has  never  been  delivered  by  plaintiff  to 
defendant,    although    plaintiff    was    duly    notified,    after    the 
delivery  of  the  remainder  of   said  machinery   that  the   said 
pinion   had   not   been   delivered;   and   although   plaintiff   has 
since  been  often  requested  to  deliver  the  same.     Because  of 
plaintiff's  failure  to  deliver  to  defendant  said  pinion,  the  said 
machinery  is  wholly  useless. 

3.  The  cost  to  defendant  of  replacing  said  pinion  will  be 
$ (state  a  sum  sufficient  to  cover  the  cost). 

216.  The  Debt  was  Incurred  in  Gambling. 

1.  On  May  ist,   1912,  defendant  and  plaintiff  played  to- 
gether at  a  game  of  chance  called  poker,  for  stakes;  and  at 
said  gaming,  the  plaintiff  won  $500  from  defendant. 

2.  Defendant   gave   plaintiff   the   note    mentioned    in    the 
complaint  for  the  money  so  staked  and  lost;  and  that  was 

the  sole  consideration  for  said  note. 

• 

217.  Infancy. 

At  the  time  of  making  the  alleged  contract  (or,  of  the 
delivery  of  the  goods)  stated  in  the  complaint,  defendant  was 
under  the  age  of  twenty-one  years,  to  wit :  he  was  eighteen 
years  of  age. 

218.  Insanity. 

At  the  time  of  making  the  alleged  promise  (or,  contract, 
or  executing  the  alleged  deed)  stated  in  the  complaint,  de- 
fendant was  of  unsound  mind,  and  thereby  incapable  of  mak- 
ing, and  of  binding  himself  by,  the  same. 


179  ANSWERS.  Form  222 

219.  To  an  Action  on  an  Insurance  Policy:     That  Plain- 
tiff Gave  a  Fraudulent  Account  of  Loss. 

1.  After  the  alleged  loss,  and  before  this  action,  plaintiff 
made  and  delivered  to  defendant  a  false  and  fraudulent  account 
of  the  alleged  loss  and  damage,  as  and  for  such  account  as  is 
mentioned  in   said  policy ;  in   which   said   account,   he   stated, 
with  fraudulent  intent,  to  induce  defendant  to  pay  him  $1,000, 
that  insured  goods  of  the  plaintiff  to  the  value  of  $1,000  had 
been  destroyed  by  said  fire,  and  that  his  damage  by  said  fire 
was  to  said  amount. 

2.  Said  insured  goods  of  plaintiff  had  not  been  destroyed 
by  said  fire  to  an  amount  exceeding  the  value  of  $200  and  his 
damage  was  not  over  $200,  as  the  plaintiff  then  well  knew. 

220.  Transfer  of  the  Interest  of  the  Insured. 

After  the  making  of  said  policy,  and  before  the  loss  alleged, 
on  or  about  May  1st,  1912,  the  entire  interest  of  plaintiff  in 
said  (insured  articles)  was  transferred  by  plaintiff  to  one 
John  Stiles  of  Camden  by  an  absolute  sale  and  delivery  of 
said  personal  property  to  him,  and  remained  in  said  Stiles 
at'  the  time  of  said  loss. 

221.  Insurance:     Extra-Hazardous  Risk. 

1.  (Allege  provision  of  policy  as  to  extra-hazardous  arti- 
cles. ) 

2.  After  the  making  of  said  policy,  and  before  the  loss 
alleged,   and   without   consent   of   defendant,   the   plaintiff   re- 
ceived into  his  said  store  a  large  quantity  of  goods  described 
in  said  policy  as  extra-hazardous,  to  wit:  (describe  said  goods 
or  refer  to  a  list  annexed),  and  at  the  time  of  said  fire,  he 
had  a  large  quantity  of  the  same  in  his  said  store. 

222.  Life  Insurance :     Misrepresentation. 

A  material  fact  stated  in  the  statement  which  is  mentioned 
in  the  said  policy,  and  which  fact  was  thereby  agreed  to  be 
the  basis  of  said  insurance,  was  untrue ;  that  is  to  say,  at  the 
time  of  delivery  of  said  statement  to  defendant,  said  John 
Doe  induced  defendant  to  issue  the  policy  by  falsely  and 
fraudulently  representing  to  defendant  in  said  statement  that 
he  (said  Doe)  was  in  a  good  state  of  health,  and  was  not 
afflicted  with  any  disease  or  disorder  tending  to  shorten  life; 


Form  223  ANSWERS.  180 

whereas  he  was  not  then  in  good  health,  but  was  afflicted 
with  tubercular  consumption,  a  disease  which  does  tend  to 
shorten  life. 

223.  Insurance:     Failure  to  Give  Account  of  Loss  within 
Limited  Time. 

Plaintiff  did  not,  within  thirty  days,  which  was  the  time 
limited  in  the  conditions  of  said  policy,  nor  within  a  reasonable 
time  after  said  loss  make  out  or  deliver  a  particular  account 
of  such  loss  and  damage  as  required  by  the  terms  of 
said  policy;  but  neglected  to  do  so  for  the  space  of  three 
months  after  said  loss. 

224.  Invalidity  of  a  Foreign  Judgment. 

1.  No  process  was  served  upon  this  defendant  within  the 
State  of  New  York  in  the  action  in  said  State  in  which  the 
said  judgment  was  recovered. 

2.  This  defendant  never  appeared  in  person,  or  by  attorney, 
in  said  action. 

225.  Invalidity  of   Domestic  Judgment  Against  a   Non- 
Resident. 

1.  When  the  action  was  commenced  in  which  the  judgment 
against  this  defendant  is  alleged  to  have  been  recovered,  this 
defendant  was  not  a  resident  of  this  state,  but  was  a  resi- 
dent of  Illinois. 

2.  Defendant  never  appeared  in  that  action  and  was  never 
served  with  process  therein  within  the  state  of  New  Jersey. 

NOTE:  The  allegation  in  the  first  paragraph  is  made  b\> 
•way  of  inducement.  It  appears  to  be  unnecessary  as  part  of 
the  defense. 

226.  To  an  Action  on  Judgment:     Reversal  of  the  Judg- 

ment. 

i.  On  March  loth,  1911,  John  Doe  sued  out  a  writ  of  error 
returnable  to  the  Court  of  Errors  and  Appeals  on  April  5th, 
1911,  whereby  the  judgment  mentioned  in  the  complaint  was 
removed  into  that  court,  and  at  the  next  November  term 
of  said  court  said  judgment  was  therein  reversed. 


181  ANSWERS.  Form  228 

Or, 

[i.  On  July  20,  1912,  John  Doe  filed  in  said  court,  notice 
of  appeal  from  said  judgment  to  the  Court  of  Errors  and  Ap- 
peals, and  such  proceedings  were  thereupon  had  that  at  the 
then  next  November  Term  of  that  court  said  judgment 
was  therein  reversed.] 

227.  Former  Judgment  for  Plaintiff. 

1.  On  May   ist,   1912,  in  an  action  in  the  Circuit  Court 
of  Mercer  County,  the  plaintiff  in  this  action  recovered  judg- 
ment against  this  defendant  for  the  sum  of  $1,000. 

2.  The  cause  of  action  upon  which  the  said  judgment  was 
recovered  was  the  same  cause  of  action  as  that  set  out  in  the 
complaint  filed  in  this  cause. 

228.  Former  Judgment  for  Defendant. 

1.  Before  this  action  was  commenced,  the  said  John  Doe 
(plaintiff)   brought  an  action  in  the  Supreme  Court  of  the 
State  of  Delaware  against  this  defendant,  to  which  action  this 
defendant  appeared  and  made  defense.     And  such  proceed- 
ings were  afterwards  had  therein  that  on  May  ist,  1912,  a  final 
judgment,  upon  the  merits  of  the  case,  was  therein  rendered 
in  favor  of  this  defendant  and  against  the  said  John  Doe. 

2.  The  alleged  cause  of  action  upon  which  the  action  above 
mentioned  was  brought  was  the  same  cause  of  action  as  that 
set  out  in  the  complaint  filed  in  this  cause. 

(//  the  Court  was  one  of  inferior,  but  general  jurisdiction, 
add  in  another  paragraph:  The  said  cause  of  action  was 
within  the  jurisdiction  of  the  said  court.) 

NOTE:  An  English  precedent  for  pleading  a  judgment  of 
the  Supreme  Court  of  Jamaica  alleges,  "And  within  the  juris* 
diction  of  said  Court"  2  Chit.  P.  (244).  But  the  jurisdiction 
of  the  Supreme  Courts  of  sister  states  is  judicially  noticed. 

It  is  enough  to  allege  that  the  judgment  was  within  the  juris- 
diction, if  the  Court  is  one  of  general,  though  inferior,  juris- 
diction. It  is  only  in  case  of  tribunals  of  limited  or  special 
jurisdiction  that  the  facts  show-ing  hoiv  jurisdiction  was  ac- 
quired must  be  stated.  23  Cyc.  1527,  1552. 

As  to  the  allegations  necessary  in  pleading  a  judgment  by 
way  of  estoppel,  23  Cyc.  1525. 


Form  229  ANSWERS.  182 

229.  Lien  for  Storage. 

1.  On  May  ist,  1912,  plaintiff  deposited  the  goods  men- 
tioned in  the  complaint  with  the  defendant  for  storage,  agree- 
ing to  pay  defendant  for  the  same  twenty-five  cents  per  month. 

2.  Defendant    has    always    been,    and    still    is,    ready    and 
willing  to  deliver  said  goods  to  plaintiff  upon  payment  of  the 
storage  money  due. 

3.  Plaintiff  has  not  paid  or  tendered  to  defendant  the  stor- 
age money  so  due. 

230.  Statute  of  Limitations. 

The  cause  of  action  stated  in  the  complaint  did  not  accrue 
within  (six)  years  next  before  the  commencement  of  this 
action. 

231.  Novation,  by  Substitution  of  New  Creditor. 

1.  On   May    roth,    1912,   plaintiff   requested    defendant    to 
make  and  deliver  to  one  John  Doe,  defendant's  demand  note 
for  $500,  payable  to  said  Doe  or  order ;  and  then  agreed  that 
if   defendant   would   do  so,   it   should  be   a   discharge   of  de- 
fendant's debt  to  the  plaintiff  stated  in  said  complaint. 

2.  On  that  day  defendant,  pursuant  to  said  request,  made 
and  delivered  the  note  so  requested  to  said  Doe. 

232.  Denial  of  Part  of  Indebtedness ;  of  Part  of  Delivery, 
and  of  Part  of  Price. 

NOTE  :  In  such  a  case  as  this  form  provides  for,  defendant 
may  answer  with  a  general  denial  only;  but  if  he  does  so, 
plaintiff  may  move  to  strike  out  the  answer,  and  ivould  prob- 
ably get  summary  judgment  for  part  of  his  claim,  under  Rule 
59.  If  part  payment  has  been  made,  it  should  be  alleged  in  the 
answer  as  a  separate  defense. 

i.  Defendant  admits  that  he  owes  plaintiff  $600,  part  of  the 
$1,000  mentioned  in  the  complaint,  for  the  goods  therein  men- 
tioned; but  as  to  the  residue  of  said  sum,  defendant  denies 
that  he  is  or  ever  was  so  indebted. 

(Add  allegation  of  payment  into  court  of  the  sum  admitted, 
if  that  is  desired;  or  of  tender  (Form  244)  if  tender  has  been 
made  (Rules  42,  43.)  Plaintiff  may  take  judgment  at  once  for 
the  sum  admitted.  Pr.  Act  Sec.  20.) 


183  ANSWERS.  Form  234 

2.  He  admits  the  sale  and  delivery  of  part  of  the  arti- 
cles stated  in  the  complaint,  being  those  mentioned  in  the  an- 
nexed list  marked  A,  at  the  prices  stated  in  the  complaint. 

3.  He  denies  that  the  articles  stated  in  the  annexed  list 
marked  B  were  reasonably  worth  the  prices  charged  for  the 
same  in  the  complaint. 

(Or,  3.  He  denies  that  the  prices  stated  in  the  complaint 
for  the  articles  set  out  in  the  list  annexed  hereto  marked  B 
(being  part  of  the  articles  stated  in  the  complaint)  are  the 
prices  agreed  upon  by  plaintiff  and  defendant,  and  he  says  that 
the  prices  so  agreed  on  for  said  articles  are  those  stated  in 
said  list  marked  B.) 

4.  He  denies  that  plaintiff  ever  delivered  to  him  the  arti- 
cles stated  in  the  annexed  list  marked  C.     (Or,  any  of  the 
articles  mentioned  in  the  complaint  except  those  stated  in  the 
annexed  lists  marked  A  and  B). 

233.  Denying  the  Promise  as  to  Part  and  Pleading  Pay- 
ment as  to  Residue. 

1.  Defendant  promised  to  pay  plaintiff  $200  only  and  did 
not  promise  to  pay  the  sum  mentioned  in  the  complaint. 

2.  Defendant  paid  said  sum  of  $200  to  plaintiff  on  May 
1st,   1912,   at   New   Brunswick. 

234.  Payment  of  All  the  Goods  Were  Worth. 
First  Defense. 

i.  The  goods  mentioned  in  the  complaint  were  not  reason- 
ably worth  the  sum  mentioned  in  the  complaint.  They  were 
worth  no  more  than  $50. 

Second  Defense. 

1.  The  statements  of  the  first  defense  are  made  part  of  this 
defense. 

2.  Defendant    paid    $50   to   the    plaintiff   for    said    goods 
on  May   ist,   1912,  at  Trenton. 


Form  235  ANSWERS.  -184 

235.  Defendant  Gave  His  Note  or  Acceptance,  which  is 
Not  Due. 

After  the  alleged  debt  had  accrued  and  before  this  action, 
defendant  delivered  to  plaintiff,  and  plaintiff  received  from 
him,  for  and  on  accound  of  said  debt,  a  bill  of  exchange  drawn 
by  plaintiff  upon  and  accepted  by,  defendant  (or,  a  promis- 
sory note  made  by  defendant),  for  $1,000,  being  the  amount 
of  said  debt,  payable  to  plaintiff,  three  months  after  d^te, 
which  period  had  not  elapsed  at  the  commencement  of  this 
action. 

236.  Part  Payment :    Part  Failure  of  Consideration :  Coun- 

ter-Claim  for  Negligence  and  for  Trespass. 

ANSWER  AND  COUNTER-CLAIM. 
First  Defense. 

1.  The  total  amount  of  the  account  for  said  mirrors  and 
other  articles  sold  and  delivered  by  plaintiff  to  defendant  be- 
•tween  the  dates  stated  in  the  complaint  was  $650. 

2.  Defendant   paid   plaintiff,   from   time   to   time,    diverse 
sums  of  money  amounting  in  all  to  $500  on  account  of  said 
mirrors   and   other   articles   and    re-delivered    to   him   certain 
of  said  articles,  particulars  of  which  are  stated  in   schedule 
A  hereto  annexed. 

Second  Defense. 

1.  All   the   foregoing   statements   of   the   first   defense   are 
made  part  of  this  defense. 

2.  It   was    agreed   between    defendant   and    plaintiff   that 
all  mirrors  so  furnished  should  be  perfect  and  true,  and  in 
every  way  satisfactory  to  defendant;  and  that  if  any  of  them, 
upon  inspection,  should  prove  to  be  untrue  or  imperfect,  the 
same   should  be   called   for   and   taken   back  by   plaintiff   and 
others  substituted  in  their  stead. 

3.  Among  the  articles  furnished  by  plaintiff  to  defendant 
under  said  agreement  and  included  in  said  account,  were  three 
large  mantel  mirrors  which  were  charged  at  the  price  of  $100. 

4.  Said  three  mantel  mirrors  proved,  upon  inspection,  to 
be  untrue  and  imperfect,  and  were  entirely  unsatisfactory  to 
defendant. 

5.  He  notified  plaintiff  on  June  loth,  1912,  that  the  said 
mirrors  were  untrue  and  imperfect  and  unsatisfactory  to  him, 


185  ANSWERS.  Form  237 

and  requested  plaintiff  to  take  them  away  and  substitute 
others  in  their  stead,  in  accordance  with  the  contract;  but 
plaintiff  has  never  done  so  though  defendant  has  at  all  times 
been,  and  still  is,  ready  to  re-deliver  said  mirrors  to  plaintiff. 

By  zifay  of  counter-claim: 
First  Count. 

1.  At  the  time  stated  in  the  complaint,  plaintiff  was  en- 
gaged in  the  business  of  selling  and  repairing  furniture  at  his 
store  in  Newark. 

2.  On  May  2Oth,  1912,  defendant  delivered  to  plaintiff  at 
his  store  one  sideboard  of  the  value  of  $200  to  be  repaired  by 
plaintiff,  for  reward;  and  plaintiff  then  undertook  to  repair 
the  same. 

3.  Plaintiff  repaired  said  sideboard  so  unskillfully  and  negli- 
gently that  in  so  doing,  he  cracked  the  mirror  forming  the 
front  of  the  same  and  thereby  greatly  injured  the  said  side- 
board. 

Second  Count. 

1.  On  June   ist,    1912,  defendant  was  lawfully  possessed 
of  one  large  leather-covered  arm-chair  of  the  value  of  $75. 

2.  On  that  day  at  defendant's  dwelling  house  in  Newark, 
plaintiff  forcibly  took  said  chair  from  the  possession  of  de- 
fendant and  carried  it  away. 

Defendant  demands  on  the  first  count,  $50  damages ;  on  the 
second  count,  $75  damages. 

237.     That  Plaintiff  Agreed  to  Accept  a  Note  of  a  Third 
Person  in  Part  Payment. 

First  Defense. 

1.  Said  goods  were  sold  and  delivered  to  defendant  by 
plaintiff  on  an  express  agreement  that  plaintiff  would  accept, 
in  part  payment  therefor,  to  the  extent  of  $100,  the  note  of 
one  John   Doe,  of  Trenton,   dated  June   2Oth,   1912,   payable 
two  months  after  date,  and  would  accept  the  residue  of  -$5°° 
in  cash. 

2.  On  June  2Oth,  1912,  defendant  tendered  to  plaintiff  the 
note  above  described  and  is  still  ready  and  willing  to  deliver 
the  same. 

3.  Defendant  refused  to  accept  the  same. 


Form  238  ANSWERS.  186 

Second  Defense. 

(As  to  the  residue  allege  payment  or  tender,  according  to 
the  fact,  following  Form  233,  paragraph  2,  or  Form  244.) 

238.  Denial  of  Plaintiff's  General  Allegation  of  Perform- 
ance. 

Plaintiff  has  not  duly  performed  all  the  conditions  of  said 
contract  on  his  part,  but  on  the  contrary  (here  state  the  par- 
ticular breach;  and  if  the  provision  broken  docs  not  appear  in 
the  complaint  it  should  be  stated  thus:  although  said  contract 
contained  a  provision  of  which  the  following  is  a  copy:  (here 
insert  the  copy}  the  defendant  did  not,  etc. 

239.  Rescission  of  Contract. 

After  the  contract  alleged  in  the  complaint,  and  before  any 
breach  thereof,  it  was  agreed  by  and  between  plaintiff  and 
defendant  that  said  contract  should  be  rescinded ;  and  they 
then  rescinded  the  same  accordingly. 

240.  Plaintiff's  Breach  of  Contract  as  to  Place  of  Delivery. 

1.  It  was  a  part  of  the  agreement  referred  to  in  the  com- 
plaint that  the  plaintiff  should  deliver  the  goods  sold  at  Free- 
hold. 

2.  Said  goods  have  not  been  so  delivered  and  have  not  been 
accepted  by  defendant. 

241.  Plaintiff's  Breach  of  Contract  as  to  Quality,  or  Kind. 

1.  It  was  a  part  of  the  agreement  mentioned  in  the  com- 
plaint that  the  mattress  therein  mentioned  should  be  stuffed 
with  horse-hair. 

2.  Said  mattress  was  not  stuffed  with  horse-hair. 

3.  The  defendant  for  that  reason,  on  May  ist,  1912,  im- 
mediately upon  discovering  the  defect,  and  within  a  reason- 
able time  after  receiving  said  mattress,  returned  the  same  to 
plaintiff  (or,  duly  tendered  the  same  back  to  plaintiff  and  has 
ever  since  been,  and  still  is  willing  to  return  it). 


187  .\\SWERS.  Form  245 

242.  By  a  Surety,  Alleging  an  Extension  of  Time. 

1.  On  May  1st,  1912  (or,  at  some  time  unknown  to  de- 
fendant) plaintiff  agreed  with  said  (debtor)   in  consideration 
of  $10  (or,  for  a  valuable  consideration)  to  extend  the  time 
of  payment  of  said  rent  guaranteed  by  defendant,  from  said 
day  on  which  the  same  was  due,  until  June  ist.  1912. 

2.  Defendant  did  not  as?ent  to  said  agreement  to  extend 
the  time. 

243.  By  a  Surety,  Alleging  a  Change  in  the  Terms  of  the 
Contract. 

1.  Defendant  gave  said  bond  to  plaintiff,  as  surety  for  one 
John  Doe,  to  secure  the  performance  on  the  part  of  said  Doe 
of  (here  state  briefly  the  principal  contract ;  or,  if  in  writing, 
refer'to  a  copy  annexed}. 

2.  Afterwards,  and  without  the  consent  of  the  defendant, 
plaintiff  agreed  with  said  Doe  as  follows:  (state  the  modifica- 
tion of  contract). 

244.  Tender. 

1.  Before  this  action  was  commenced,  on  May  ist,  1912,  at 
Newark,  defendant  tendered  to  plaintiff  $1,000  in  payment  of 
•said  (debt  or  damages),  but  he  refused  to  accept  the  same. 

2.  Defendant  has  ever  since  been,  and  still  is,  ready  and 
willing  to  pay  plaintiff  said  sum,  but  plaintiff  has  hitherto  re- 
fused to  accept  the  same. 

3.  Defendant  now  brings  said  sum  into  court  here. 

245.  Denial  of  Part  and  Tender  of  Residue. 

First  Defense. 

i.     Defendant  promised  to  pay  plaintiff  $500  only  and  did 
not  promise  to  pay  him  the  sum  mentioned  in  the  complaint. 

Second  Defense. 

1.  The  statements  of  the  first  defense  are  made  part  of 
'this  defense. 

2.  On   July    ist,    1912,   and   before   this   action   was   com- 
menced,, he  tendered  to  plaintiff  $500  in  payment  of  said  sum  so 
promised ;  but  plaintiff  refused  to  receive  the  same. 


Form  246  ANSWERS.  '  188 

3.  Defendant  has  ever  since  been,  and  still  is,  ready  and 
willing  to  pay  said  sum  to  plaintiff;  but  plaintiff  has  hitherto 
refused  to  receive  the  same. 

4.  (Same  as  3  in  the  preceding  form.} 

246.  Tender,  When  Cause  of  Action  is  Denied. 

(State  denial,  or  defense,  in  the  same  manner  as  if  no  ten- 
der had  been  made;  then  add  another  defense  as  follows}  : 
Second  Defense. 

1.  Before  this  action  was  commenced,  on  May  ist,  1912, 
at  Newark,  defendant  tendered  to  plaintiff  $1,000  by  way  of 
compromise  and  in  satisfaction  of  said  alleged  (debt  or  dama- 
ges), but  he  refused  to  accept  the  same. 

2.  Defendant  has  ever  since  been,  and  still  is,  ready  and 
willing  to  pay  plaintiff  said  sum  by  way  of  .compromise  and 
satisfaction  as  aforesaid  but  plaintiff  has  hitherto  refused  to 
accept  the  same. 

3.  Defendant  now  brings  said  sum  into  court  here. 

247.  False  Warranty :    Note  was  Given  for  Price  of  Sheep : 

They  were  Diseased:   Counter-Claim. 

Answer  and  Counter-Claim. 

1.  Said  note  was  given  for  sheep  purchased  by  defendant 
of  plaintiff. 

2.  In  making  said  sale,  plaintiff  warranted  that  the  sheep 
so  sold  were  sound  and  free  from  disease. 

3.  Defendant  purchased  said  sheep  relying  upon  said  repre- 
sentation -of  plaintiff  and  paid  him  the  agreed  price. 

4.  In  fact,  the  sheep  were  not  sound  at  the  time  of  said  sale 
but  were  then  diseased  with  the  foot-rot,  as  plaintiff  well  knew. 

5.  Defendant  was  ignorant  of  that  disease  and  at  the  time 
of  said  sale  and  delivery  and  did  not  know  that  the  sheep 
were  so  diseased. 

6.  By   reason   of   said   disease   said   sheep   were,   and   are, 
wholly  worthless. 

B\  n'ay  of  counter-claim: 

1.  All  the  foregoing  statements  in  this  answer  are  made 
part  of  this  counter-claim. 

2.  Said  disease  is  contagious. 


189  ANSWERS.  Form  251 

3.  Defendant  was  then  the  owner  of  500  other  sheep  with 
which  he  allowed  those  purchased  to  run. 

4.  Before  he  had  any  knowledge  that  the  sheep  so  pur- 
chased were  diseased,  and  while  they  were  running  with  his 
other  sheep,  the  latter  became  diseasd  with  said  foot-rot  by 
infection  from  the  purchased  sheep. 

5.  He  has  been  thereby  compelled  to  spend  $100  in  their 
cure  and  in  endeavoring  to  cure  them  and  he  has  been  dam- 
aged, by  reason  of  the  infection  of  his  other  sheep  as  afore- 
said, to  the  amount  of  $2,000. 

Defendant  demands  $2,000  damages. 

248. .  Mechanic's  Lien :    Denial  of  Lien  by  Owner  or  Mort- 
gagee. 

Neither  said  building  nor  said  land  is  liable  for  said  alleged 
debt. 

249.  Mechanic's  Lien:     Claim  of  Prior  Lien  by  Mortga- 
gee. 

The  alleged  lien  of  plaintiff  is  not  paramount,  but  is  subject 
to,  the  lien  of  this  defendant's  said  mortgage. 

250.  Defense  of  Son  Assault  Demesne. 

1.  On  the  day  mentioned  in  the  complaint,  and  just  before 
the  assault  therein  complained  of,  plaintiff  made  an  assault  up- 
on the  defendant;  and  defendant,  in  self-defense,  necessarily 
beat  and  bruised  the  plaintiff  a  little,  doing  him  no  unneces- 
sary %  harm. 

2.  The   acts   of   the   defendant   above   mentioned   are   the 
same  of  which  the  plaintiff  complained. 

251.  To  an  Action  for  Assault;  Defense  of  Molliter  Manus 
Imposuit. 

1.  Paragraphs  one  and  two  (those  as  to  the  beating  and 
injury)  are  denied. 

2.  At  the  time  mentioned  in  the  complaint,  plaintiff  had 
made  an  assault  on  one  John  Doe,  and  was  then  and  there 
beating  him  (or,  the  plaintiff  and  one  John  Doe,  in  breach  of 
the  peace,  were  fighting  together). 


Form  252  ANSWERS.  190 

3.  Thereupon    the    defendant,    in    order    to    preserve    the 
peace  and  prevent  the  plaintiff  from  further  beating  said  Doe 
(or,   in  order  to  preserve  the  peace  and  to  separate  them) 
gently  laid  his  hands  upon  the  plaintiff,  as  he  lawfully  might, 
doing  him  no  unnecessary  injury. 

4.  Thereupon  the  plaintiff  assaulted  the  defendant,  and  de- 
fendant, in  self-defense,  necessarily  beat  and  bruised  the  plain- 
tiff a  little,  doing  him  no  unnecessary  injury. 

5.  The  acts  of  defendant  above  mentioned  are  the  same  of 
which  plaintiff  complains. 

252.  To  an  Action  for  Assault  and  Battery ;  Self  Defense ; 
Counter-Claim. 

(See  Form  143.) 
Answer  and  Counter-Claim. 

1.  Paragraph  one  is  denied,  except  as  herein  admitted.   On 
the   day   mentioned    in   the   complaint,    plaintiff   attempted   to 
strike  defendant,  and  defendant  thereupon,  in  order  to  protect 
himself  from  violence,  struck  the  plaintiff  using  no  more  force 
than  was  necessary  in  order  to  defend  himself  from  the  attack 
of  plaintiff. 

2.  As  to  paragraphs  two  and  three,  defendant  has  not  any 
knowledge  or  information  sufficient  to  form  a  belief. 

By  tva\<  of  counter-claim. 

1.  The  statements  in  paragraph  one  of  this  answer   are 
made  part  of  this  counter-claim. 

2.  Plaintiff,  on  the  day  above  mentioned,  while  defendant 
was  defending  himself  as  above  stated,  struck  him  many  blows 
with  a  heavy  whip,  causing  him  thereby  great  pain. 

Defendant  demands  $1,000  damages. 

253.  Probable  Cause  to  an  Action  for  Malicious  Prosecu- 
tion. 

(See  Form   153.) 

1.  Before  the  said  complaint  of  larceny  was  made,  the  said 
watch  of  defendant  had  been  stolen  by  some  person  unknown 
to  defendant. 

2.  Said  watch  after  being  so  stolen,  was  found  concealed 
in  the  house  of  plaintiff  who  thereupon  falsely  asserted  that  the 
said  watch  was  his  property  and  that  he  had  bought  it  of  C.  D. 
(state  any  other  ground  of  suspicion  according  to  the  facts). 


191  ANSWERS.  Form  255 

3.  Because  of  the  facts  above  stated,  defendant  suspected, 
and  says  that  he  had  reasonable  and  probable  cause  for  sus- 
pecting, that  plaintiff  had  stolen  said  watch,  and  thereupon 
defendant  caused  plaintiff  to  be  arrested  as  stated  in  the  com- 
plaint. 

254.  By  a  Railroad  Company  to  an  Action  by  a  Passenger; 

(See  Form  144.) 

1.  Paragraph  four  is  denied,  except  in  so  far  admitted  in 
the  following  statement : 

Plaintiff  received,  while  passing  from  Elizabeth  to  Jersey 
City,  in  exchange  for  his  said  ticket,  a  certain  check  which 
was  evidence  of  his  right  to  travel  between  those  points.  By 
a  reasonable  rule  adopted  and  enforced  by  defendant,  it  was 
the  duty  of  plaintiff  to  surrender  said  check  to  the  conductor 
of  defendant's  train  during  his  passage  from  Elizabeth  to 
Jersey  City,  upon  demand ;  and  it  was  the  duty  of  the  con- 
ductor to  eject  from  the  train,  at  the  first  stopping  place,  any 
passenger  who  refused,  in  such  case,  to  surrender  such  check. 
Plaintiff,  while  passing  as  aforesaid,  from  Elizabeth  to  Jersey 
City,  refused,  upon  demand,  to  surrender  said  check  to  the 
conductor  of  the  train;  and -thereupon  the  conductor,  without 
unnecessary  force,  attempted  to  put  the  plaintiff  off  the  train 
at  the  first  stopping  place,  to  wit,  at  Marion,  and  desisted 
from  said  attempt  as  soon  as  the  plaintiff  surrendered  said 
check. 

2.  As  to  paragraph  5,  defendant  has  no  knowledge  or  in- 
formation sufficient  to  form  a  belief. 

255.  Inconsistent  Defenses ;  Action  of  Trespass  on  Land. 

First  Defense. 

i.  Paragraphs  one  and  two  of  the  complaint  (those  alleg- 
ing the  trespass)  are  denied. 

Second  Defense. 

i.  Defendant's  entry  on  said  premises  was  made  under  a 
writ  of  attachment  in  favor  of  John  Doe  of  Trenton  against 
the  plaintiff,  directing  an  attachment  of  the  plaintiff's  property 
to  the  amount  of  $1,000;  which  writ  was  returnable  to  the 
Supreme  Court  on  the  2Oth  day  of  May.  1912,  and  was 
direcfed  to  the  Sheriff  of  Mercer  County. 


Form  256  ANSWERS.  192 

2.  Defendant  on   May   ist,    1912  was   Sheriff  of   Mercer 
County  and  said  writ  was  delivered  to  him  on  that  day  to  be 
executed. 

3.  Defendant  while  he  was  sheriff  as  aforesaid,  attached 
a  pair  of  oxen  of  plaintiff  by  virtue  of  said  writ,  and  he  made 
said  entry  in  order  to  levy  said  attachment. 

256.  By  Sheriff,  to  Complaint  for  an  Illegal  Seizure. 

(See  Form  No.  145.) 
(Answer  of  Defendant  John  Doe.) 

1.  This  defendant  denies  that  said  50  barrels  of  flour  be- 
longed to  the  insolvent  estate  of  said  John  Stiles,  and  denies 
that  he  wrongfully  seized  the  same,  as  alleged  in  paragraphs 
4  and  5. 

2.  More  than  thirty  days  before  said  proceedings  in  insol- 
vency by  Stiles  were  begun,  said  50  barrels  of  flour  taken  and 
sold  by  defendant  were  lawfully  seized  by  this  defendant  in 
said  action  brought  by  the  defendant  James  Smith  against  said 
Stiles,  by  virtue  of  a  writ  of  attachment  issued  under  the  Prac- 
tice Act  of  1903  and  executed  by  this  defendant.     Said  flour 
was  afterwards  levied  upon,  according  to  the  provisions  of  said 
act,  under  a  special  writ  of  execution  issued  upon  the  said 
judgment,  ^nd  were  lawfully  sold  by  this  defendant  pursuant 
to  the  command  of  said  writ. 

257.  Privileged  Communication  in  an  Action  for  Slander. 

(See  Form  157.) 

1.  Plaintiff  had  been  a  clerk  to   defendant.      Said   John 
Smith  was  engaged  in  the  same  business,  and  applied  to  de- 
fendant for  advice  as  to  the  character  of  plaintiff  who  was 
seeking  employment  of  him. 

2.  Defendant  spoke  the  words  complained  of  while  truth- 
fully giving  to  said  John  Smith,  in  confidence,   for  the  pur- 
pose aforesaid,  his  real  opinion  of  the  plaintiff. 

3.  Paragraphs  three  and  four  are  denied. 


193  ANSWERS.  Form  260 

258.  License,  to  an  Action  for  Trespass  to  Personal  Prop-« 
erty. 

(See  Form  149.) 

1.  He  denies  paragraph  one,   except  as  herein  admitted. 
Defendant  took  said  horse  on  the  day  alleged  in  the  complaint, 
by  authority  of  a  general  permission  from  the  plaintiff  to  ride 
said  horse  at  such  times  as  it  was  not  required  for  plaintiff's 
use. 

2.  Paragraph  two  is  denied. 

259.  Ejectment :     License. 

1.  On  May  loth,  1912,  plaintiff  gave  to  defendant  a  license 
to  enter  on  and  take  possession  of  the  said  land. 

2.  Defendant  entered  thereon  on  the  day,  and  has  ever 
since  remained  in  possession  under  that  license. 

3.  Plaintiff  never  revoked  said  license  before  bringing  this 
action. 

260.  Ejectment :     Set-off  of  the  Value  of  Permanent  Im-. 
provements. 

(NOTE:  See  Ejectment  Act,  Sec.  47;  Supreme  Court  Rules 
86.) 

First  Defense. 

(Under  this,  make  general  denial,  or  state  any  special  de- 
fense. ) 

Second  Defe-nsc. 

1.  Defendant  has  made  permanent  improvements  upon  the 
said  land,  namely,  he  has  erected  thereon  a  barn  of  the  value 
of  $500,  and  a  poultry  house  of  the  value  of  $200. 

2.  Said    improvements   were  made   in   good   faith  by   de- 
fendant   (or,  by  the  persons  under  whom   defendant  claims 
title),    while    holding   adversely   to   plaintiff,    under    color   of 
title  obtained  by  a  fair,  bona  fide    purchase  from  John  Doe, 
who  was  in  possession  of  said  land  at  the  time  of  said  pur- 
chase and  was  then  supposed  to  have  a  legal  right  and  title 
thereto. 

Defendant  demands  allowance  -and  set-off  of  the  value  of 
said  improvements  against  the  damages,  if  any,  which  plain- 
tiff may  recover. 


Form  261  ANSWERS.  194 

261.  Replevin:     Denial  of  Detention,  and  Disclaimer. 

(See  Form  179.) 

1.  As  to  the  matters  alleged  in  paragraphs  one  and  two, 
defendant  has  not  any  knowledge  or  information  thereof  suffi- 
cient to  form  a  belief. 

2.  Paragraph  three  is  denied. 

3.  Defendant  disclaims  all  right  to  the  property  described 
in  the  complaint. 

262.  Replevin:       General     Denial    without     Disclaimer; 
Counter-Claim  for  Return  of  Goods  and  Damages. 

i.     Defendant  denies  the  truth  of  the  matters  contained  in 
the  complaint. 
By  way   of  counter-claim: 

i.  Defendant,  at  the  time  of  the  alleged  taking,  was  and 
still  is  the  owner,  and  entitled  to  the  immediate  possession,  of 
the  goods  and  chattels  described  in  the  complaint. 

Defendant  demands  possession  of  the  said  goods  and 
chattels  and  $ damages. 

263.  Replevin:     Answer  in  the  Nature  of  an  Avowry 
Counter-Claim  for  Return  of  Goods  and  Damages. 

1.  Paragraphs  one,  two  and  three  are  denie'l. 

2.  On   the    said   tenth   day   of   January,    1912,    defendant 
was  and  still  is  a  deputy  sheriff  in  and  for  Mercer  County. 

3.  On  said  date,  defendant,  as  such  deputy  sheriff,  levied 
upon  the  goods  and  chattels  mentioned  in  the  complaint,  as 
the   property  of   Richard   Roe  of   Freehold   upon   a   writ   of 
attachment  theretofore  delivered  to  him  and  which  had  been 
issued  out  of  the   Supreme   Court  on  January  8th.    1912,   in 
an  action  in  which  John  Doe  was  plaintiff  and  the  said  Richard 
Roe  was  defendant,  and  at  the  time  of  the  taking  of  said  goods, 
mentioned  in  the  complaint,  defendant  was,   as  such  officer, 
holding  said  goods  and  chattels  by  virtue   of   said   writ  of 
attachment. 

4.  Said  goods  and  chattels  were  at  the  time  of  said  attach- 
ment and  still  are,  the  property  of  said  Richard  Roe. 

By  way  of  counter-claim: 

i.  All  the  paragraphs  of  the  answer  are  made  part  of  this 
counter-claim. 


195  AFFIDAVIT   OF   MERITS.  Form  265 

Defendant  demands  possession  of  said  goods  and  chattels 
and  $ damages. 


Iss. 


264.  Affidavit  of  Merits. 

(Caption  and  Title.) 

State  of 

County  of 

A.  B.,  being  duly  sworn  on  his  oath  says,  that  he  is  the 
defendant  in  the  above  stated  cause,  and  that  he  believes  that 
he  has  a  just  and  legal  defense  to  said  action  on  the  merits 
of  the   case. 
(Jurat.) 

OR,  when  affidavit  is  made  by  defendant's  attorney  or  agent: 
that  he  is  the  attorney  (or,  agent)  duly  authorized  to  make  this 
affidavit  in  this  cause  for  the  defendant.  That  defendant  is 
(state  facts  shoeing  n-hy  affidavit  is  not  made  by  defendant; 
such  as  that  he  is  absent  from  the  state,  or  the  like}. 

NOTE:  If  the  affidavit  is  made  by  an  officer  of  a  corpora- 
tion, it  should  state  his  authority  to  make  the  affidavit,  unless 
his  office  is  such  as  to  imply  such  an  authority;  for  example. 
President  or  General  Manager. 

265.  Notice  to  be  Endorsed  on  Complaint  that  Affidavit* 
of  Merits  Must  Be  Filed. 

To  the  within  named  defendant: 

Take  notice  that  if  the  within  summons  and  complaint  be 
served  upon  you  personally  and  you  intend  to  make  defense, 
then  you  must  file  an  affidavit  of  merits  within  ten  days  of 
such  service  and  must  file  an  answer  within  twenty  days  of 
such  service;  and  that  in  default  thereof,  judgment  will  be 
entered  against  you.  Lawful  service  upon  a  corporation  is 
deemed  personal  service. 


Form  266  COUNTER-CLAIM  AND  SET-OFF.  196 

Counter-claim  and  Set-off. 

(See  also  Counter-claims  with  Answers;  Forms  Nos.  187,  236, 
247,  252,  262,  263.) 

(Any  matter  of  strict  defense  should  be  stated  by  way  of 
Answer,  before  the  statement  of  the  counter-claim,  or  set-off.) 

266.     Commencement. 

(FROM  SCHEDULE  B.,  MODIFIED.) 

<  (State   title.} 

Defendant  (state  residence}   says,  by  way  of  counter-claim 
against  the  plaintiff  that: 

(Fill  up  in  accordance  ivith  the  following  forms.) 
(Signed) 


Attorney  for  Defendant. 

NOTE:  //  the  cownter-claim  is  against  others  than  the 
plaintiff  the  names  of  the  persons  against  whom  it  is  made 
must  be  stated  (Rule  46.) 

267.  Against  Carrier  for  Negligence. 

The  transportation  of  the  goods  mentioned  in  the  complaint 
was  conducted  so  badly  and  negligently  that  by  the  negligence 
and  improper  conduct  of  plaintiff  and  his  servants  in  that 
behalf,  a  part  of  said  goods,  of  the  value  of  $300  were  wholly 
lost  to  defendant;  and  a  part  thereof,  of  the  value  of  $500, 
were  damaged  by  water  to  the  amount  of  $100. 

Defendant  demands  $400  damages,  or  so  much  thereof  as  he 
may  be  entitled  to  above  the  plaintiff's  claim. 

SET-OFF. 

(See  Practice  Act  (1912),  Sec.  12;  Set-off  Act,  Comp.  Stat. 
p.  4836.) 

(When  no  other  defense  is  made,  the  following  forms  of 
set-off  may  be  used.) 

268.  Answer  by  way  of  Set-off. 

At  the  time  of  the  commencement  of  this  action,  the  plain- 
tiff was,  and  still  is,  indebted  to  the  defendant  in  the  sum  of 
$1,000  for  the  following  cause:  (here  state  the  cause  of  action 
relied  on  as  a  set-off). 


197  COUNTER-CLAIM  AND  SET-OFF.  Form  270 

Defendant  offers  to  set-off  said  debt  with  interest  against 
the  plaintiff's  demand  (to  the  extent  of  the  sum  that  is  due 
plaintiff  and  demands  judgment  for  such  balance  as  may  be 
found  to  be  due  defendant  from  plaintiff  on  said  account.) 

MONEY  RECEIVED  BY  PLAINTIFF  TO  USE  OF  DEFENDANT. 

269.  Answer  by  way  of  Set-off. 

1.  Between  May  ist  and  July  ist,  1912,  plaintiff  received 
from  one  John  Roe,  of  Newark,  $1,000  for  the  use  of  defend- 
ant. 

2.  Plaintiff  has  not  paid  the  same. 
(Conclude  as  in  the  preceding  form.) 

270.  Answer  to  Counter-Claim :      General    Denial    with* 
New  Matter. 

First  Defense. 

Every  paragraph  of  said  counter-claim  is  denied. 

Second   Defense. 

At  the  time  when  said  horse  is  alleged  in  the  counter-claim 
to  have  been  hired,  the  plaintiff  was  an  infant,  aged  only  19 
years. 


Form  271  REPLIES.  198 

Replies. 

271.  General  Denial. 

The  plaintiff  ^denies  every  allegation  in  the  answer. 

272.  Partial  Denial. 

Plaintiff  denies  the  second  paragraph  of  the  answer. 

273.  Duress,  Avoiding  a  Release. 

Plaintiff  replies  that  said  release  was  extorted  from  him  by 
the  defendant,  by  threats  that,  if  not  given,  defendant  would 
beat  or  main  the  plaintiff,  or  by  any  other  threats. 

274.  Reply,  and  Answer  to  Counter-Claim :     Son  Assault 
Demesne. 

(See  Form  252.) 

i.  The  plaintiff  denies  that  the  assault  and  striking  by 
defendant  was  in  self  defense,  as  alleged  in  paragraph  one  of 
the  Answer. 

By  way  of  answer  to  the  counter-claim. 

The  plaintiff  denies  that  he  struck  defendant  otherwise  than 
as  herein  admitted.  Defendant  first  beat  plaintiff  as  stated  in 
paragraph  one  of  the  complaint,  the  plaintiff  thereupon,  in 
order  to  protect  himself  from  defendant's  attack,  struck  plain- 
tiff with  a  whip,  using  no  more  force  than  was  necessary  to 
his  self  defense. 

275.  Defendant's   Reply  to  Above  Answer  to   Counter- 
claim. 

Defendant  denies  that  the  assault  and  striking  by  plaintiff 
was  in  self  defense  as  alleged  in  the  answer  to  defendant's 
counter-claim. 

276.  Revocation  of  License. 

(See  Forms  149,  258.) 

1.  Before  the  trespasses  mentioned  in  the  complaint,  plain- 
tiff had  revoked  the  permission  previously  given  to  ride  said 
horse. 

2.  Plaintiff  denies  that  defendant  took  said  horse  by  au- 
thority of  a  general  permission,  as  alleged  in  the  second  para- 
graph of  the  answer. 


199  REPLIES— SUPPLEMENTAL  PLEADINGS.    Form  279 

277.  Reply  to  Answer  of  Married  Women's  Act:     Con- 
tract Made  in  Another  State:    Foreign  Statute. 

(See  Form  209.) 

1.  Plaintiff  replies  that  the  said  contract  was  (made  and) 
delivered  and  first  took  effect  (or,  the  said  note  was  made) 
dated  and   (delivered  or  made  payable),  within  the  State  of 
New  York,  and  was  intended  by  the  parties  thereto  to  be  gov- 
erned by  the  law  of  that  state.     (See  Mayer  vs.  Roche,  77  N. 
J.  L.  681.) 

2.  By  a  statute  enacted  by  the  Legislature  of  the  State  of 
New   York   and   approved   by   the   Governor   thereof   on   the 

day    of .  . entitled it  was, 

among  other  things,  enacted  in  words  as  follows:    (here  copy 
the  part  of  the  statute  in  question,  making  married  women 
liable  upon  all  their  contracts,  whether  as  surety  or  otherwise.) 

3.  Said  statute  was  in  force  in  the  State  of  New  York  at 
the  time  of  the  making  and  delivery  of  the  said  contract  (or, 
note). 

278.  Rejoinder  to  Reply:     Duress. 

Defendant  says  by  way  of  rejoinder  that  said  release  was 
extorted  from  defendant  by  plaintiff's  duress,  in  threatening 
defendant  that  plaintiff  would  shoot  defendant ;  because  of 
which  threat,  and  in  fear  thereof,  defendant  executed  said 
release. 

279.  Supplemental  Pleadings. 

(Title) 

Supplemental  Complaint  (or,  Answer). 

By  leave  of  Court  first  obtained,  the  plaintiff  (or,  defendant) 
says  that : 

i.  Since  the  commencement  of  this  action  (state  in  num- 
bered paragraphs  the  additional  matter  which  has  arisen  since 
the  commencement  of  the  action). 


Form  280  200 

Postea  and  Judgments. 

280.  Postea. 

(FROM  SCHEDULE  B.) 
This  case  was  tried  before  Justice   (or  Judge)   A.  B.  with 

a  jury,  at  the Circuit,  on  December  10,  1911. 

The  jury  rendered  a  general  verdict  against  the  defendant 
and  in  favor  of  the  plaintiff  for  $5.000.  (State  amount  in 
zi'ords  and  figures.} 

(Signed) 

A.  B., 

J- 

Rules  for  Judgment. 

NOTE:  Rules,  or  Orders,  for  the  entry  of  judgment  will  be 
used  under  the  new  Practice  Act  (1912)  asformcrlv.  They  ma\ 
be  easily  framed,  according  to  the  nature  of  the  case,  from  the 
following  forms  of  judgment.  A  few  forms  of  such  Rules  are 
given  here  for  illustration. 

281.  Rule  for  Judgment  Interlocutory  or  Final  by  Default, 
Against  Defendant. 

The  summons  and  complaint  in  this  cause  having  been  duly 
served  upon  the  defendant,  on  May  loth,  1912,  and  defendant 
having  failed  to  file  an  answer,  or  take  any  other  step  in  re- 
sponse to  the  complaint,  within  the  time  limited  by  the  rules 
of  court ; 

It  is  ORDERED  that  judgment  interlocutory  be  entered  against 
the  defendant  and  in  favor  of  the  plaintiff.  (//  damages  be 
unliquidated,  add :  and  that  a  Writ  of  Inquiry  do  issue,  di- 
rected to  the  Sheriff  of County,  to  assess  the  dam- 
ages which  the  plaintiff  has  sustained.) 

Rule  actually  entered  this clay  of 

1912. 

On  motion  of  C.  D. 

Attorney  of  Plaintiff. 

(If  an  assessment  of  damages  be  made  and  filed  at  the  time 
of  entering  the  above  Rule,  then  instead  of  the  last  paragraph, 
the  follozving  form  sJwuld  be  used:  And  the  damages  of  the 
plaintiff  having  been  assessed  by  the  Clerk  of  this  Court  (or, 
in  open  court)  at  the  sum  of  $ 


201  RULES  FOR  JUDGMENT.  Form  284 

It  is  ORDERED  that  judgment  final  be  entered  against  the  de- 
fendant and  in  favor  of  the  plaintiff  for  the  sum  of  $ 

with  costs  to  be  taxed. 

(Add  date  of  entry  of  the  Rule  in  the  Minutes.) 

282.  Rule  for  Judgment  for  Plaintiff  on  Verdict  in  the 
Circuit  Court. 

This  action  having  been  tried  before  Judge  A.  B.  with  a  jury, 
in  the  presence  of  counsel  of  the  respective  parties,  on  Decem- 
ber loth,  1911  ;  and  the  jury  having  returned  a  verdict  in  favor 
of  the  plaintiff,  for  $ damages : 

It  is  ORDERED  that  judgment  final  be  entered  in  favor  of  the 

plaintiff  and  against  the  defendant  for  the  sum  of  $ 

and  the  plaintiff's  costs  to  be  taxed. 

283.  Rule  for  Judgment  Against  Defendant  for  Failure 
to  Comply  with  Conditions  of  Leave  to  Defend. 

An  order  having  been  regularly  made  on  June  10,  1912  giv- 
ing leave  to  the  defendant  to  defend  upon  condition  that 
(state  the  condition  which  the  defendant  failed  to  perform}  ; 
and  it  appearing  that  defendant  has  not  performed  said  con- 
dition, and  that  after  due  notice  of  the  application  for  this 
order  he  has  failed  to  show  any  sufficient  excuse  for  said 
failure,  it  is  ordered  that  his  answer  be  struck  out  and  that 
judgment  interlocutory  be  entered  against  him. 

(Continue  as  in  Form  281  in  respect  of  damages.) 

284.  Order  for  Summary  Judgment. 

(FROM  SCHEDULE  B.) 

It  appearing  by  affidavit,  filed  in  the  cause,  that  the  defense 
made  by  defendant's  answer  is  sham  (or  frivolous)  and  the 
defendant,  after  due  notice,  having  failed  to  show  such  facts 
as  entitle  him  to  defend ; 

It  is  ordered,  that  the  answer  be  struck  out  and  that  final 

judgment  be  entered   for  plaintiff  for  the  sum  of  $ 

and  costs. 

(Signed)  X.  Y., 

Justice  (or  Judge). 
NOTE:     For  Summary  Judgment,  see  Form  296. 


Form  285  AFFIDAVIT  FOR  JUDGMENT.  202 

285.     Affidavit  for  Summary  Judgment. 

(FROM  SCHEDULE  B.) 

NEW  JERSEY, 


MERCER  COUNTY. 

A.  B.,  being  duly  sworn,  on  his  oath  says ;  I  am  the  plaintiff 
in  the  above-stated  cause.  I  sold  to  defendant  the  goods  men- 
tioned in  the  complaint,  upon  his  order,  and  delivered  the  same 
to  him.  The  prices  charged  for  the  same,  and  stated  in  the 
complaint,  were,  and  are,  reasonable  prices.  No  specific  prices 
were  agreed  upon  between  us.  The  full  amount  of  prices  for 

which  said  goods  were  sold  is  $ and  the  said  amount 

is  unpaid  and  due.  I  believe  that  there  is  no  defense  to  the 
action. 

(Jurat} 

NOTE  :  //  the  affidavit  is  not  made  by  the  plaintiff,  it  should 
show  that  the  affiant  is  in  a  position  to  be  cognisant  of  the  facts 
stated: 

286.     Order  for  Leave  to  Defend  on  Terms. 

(FROM  SCHEDULE  B.) 

It  appearing  probable  by  affidavit  filed  in  the  cause  that  the 
defense  is  sham  (or  frivolous),  but  the  defendant  having  shown 
such  facts  as  entitle  him  to  this  order; 

It  is  ordered,  that  defendant  have  leave  to  defend,  on  condi- 
tion that  (state  terms;  for  instance), 

1.  The  cause  be  put  on  the  list  at  the  present  term  without 
notice  of  trial  (or,  the  cause  be  tried  without  notice  of  trial  on 

the day  of instant  or  such  later  day 

as  may  be  hereafter  ordered)  ; 

2.  The  following  facts  and  documents  be  admitted:    (State 
uncontested  facts  and  documents  not  admitted  in  pleadings)  : 

3.  The  defendant,   within days,   make  to  the 

plaintiff,  and  file  in  the  cause,  a  bond  of  himself  and  a  surety 
company  authorized  to  do  business  in  this  State,  in  the  sum 

of  $ ,  conditioned  to  pay  such  judgment,  if  any,  as 

plaintiff  may  recover  against  him  in  this  action. 

(Or,  pay  into  court  the  sum  of  $ ,  as  security  for 

such  judgment  as  plaintiff  may  recover  against  him  in  this 
action.) 

NOTE  :  For  Rule  for  judgment,  and  judgment,  for  failure  to 
comply  with  terms,  see  Forms  283,  297. 


203  JUDGMENTS.  Form  287 

Judgments. 

287.     Judgment  Record. 

(FROM  SCHEDULE  B  MODIFIED.) 

In  the  Supreme  Court  of  New  Jersey. 

(Or,  in  the  Hudson  County  Circuit  Court). 

Judgment  Record. 

C.  D.,  the  defendant  in  this  cause,  was  summoned  (or,  taken 
on  capias  ad  respondendum)  to  answer  unto  A.  B.,  the  plaintiff 
therein,  in  an  action  at  law  upon  the  following  complaint : 
(Copy  complaint,  including  signature  of  attorney.) 

The  defendant  answered  as  follows:  (Copy  the  ansiver,  in- 
cluding signature  of  attorney;  copy  also  further  pleadings,  if 
any.  If  supplemental  pleading  be  added  under  order  giving 
leave,  insert  the  words  "By  leave  of  the  Court  the  plaintiff  fur- 
ther complained,"  or  "The  defendant  further  answered,"  as 
the  case  may  be.} 

(Add  the  judgment.    See  Form  No.  288.) 

NOTE:  If  any  other  documents  filed  in  the  cause  be  neces- 
sary to  present  a  question  raised  on  am  appeal,  they  may  be 
printed  in  the  statement  of  the  case. 

If  any  pleading  be  amended,  copy  it  in  the  amended  form 
only,  unless  an  appeal  raises  a  question  upon  the  right  to  amend; 
in  that  case  the  original  pleading  should  be  copied  in  the  record 
and  the  amendment  complained  of  should  then  be  copied,  in- 
troduced thus:  "By  leave  of  the  Court  the  plaintiff  was  al- 
lowed to  amend  the  said  complaint"  (or,  "The  defendant  was 
allowed  to  amend  the  said  answer)  by  adding  (or  striking  out) 
the  following."  (Then  copy  the  amemdment.) 

NOTE:  The  record  of  a  judgment  recovered  under  the  pro- 
visions of  the  Mechanics'  Lien  Act,  should  show  how  the  sum- 
mons was  served.  See  note  to  Form  114.  and  sec.  24  of  that 
Act. 

On  attachment  the  record  should  show  as  heretofore,  how  the 
court  acquired  jurisdiction,  ris. :  b\  stating  a  copy  of  the  affi- 
davit and  writ  of  attachment. 

NOTE:  The  follozving  forms  of  judgment  may  be  used  in 
making  up  the  judgment  record.  The  practitioner  will,  of 


Form  288  JUDGMENTS.  204 

course,  distinguish  them  from  rules  (or  orders)  for  the  entry 
of  judgment.  See  above,  under  caption  "Rules  for  Judg- 
ments.'' 

When-  these  forms  of  judgment  are  used,  the  postea  may  be 
omitted  from  the  judgment  record. 

It  is  not  intended  to  give  here  a  complete  set  of  forms  for 
judgments  in  all  cases,  but  in  such  only  as  may  be  necessary  to 
illustrate  sufficiently  the  changes  in  form  required  in  order  to 
conform  to  the  ;/^7cr  practice. 


288.  Judgment  for  Plaintiff  on  Verdict. 

(FROM  SCHEDULE  B  MODIFIED.) 

This  action  was  tried  before  Justice  (or  Judge)  A.  B.  with  a 
jury,  in  the  presence  of  the  counsel  of  the  respective  parties,  at 
the  ............  Circuit,  on  December  10,  1911. 

The  cause  having  been  heard  and  submitted  to  the  jury,  they 
returned  their  verdict  as  follows  :  (//  a  general  verdict  be 
found  by  the  jury  or  entered  by  order  of  the  court  upon  an- 
swers of  the  jury  to  the  court's  questions,  copy  the  verdict  at 
this  point.  If  a  special  verdict  be  rendered,  copy  that  at  this 
point.} 

Whereupon  it  is  adjudged  that  the  plaintiff  (name)  recover 
of  the  defendant  (name)  the  sum  of  $  ..........  and  his  costs, 

which  are  taxed  at  the  sum  of  $  ........  ,  making  in  the  whole 

the  sum  of  $  ..........  (State  amounts  in  words  and  figures.) 

Judgment  entered  December  ......  ,  1911. 

NOTE  :  If  the  cause  be  tried  unthout  a  jury,  the  findings  of 
the  court  should  be  substituted  in  the  above  form  for  the  ver- 
dict.) 

289.  Judgment  for  Defendant  on  Verdict. 

(FROM  SCHEDULE  B.) 

(Folloiv  the  foregoing  form  to  and  including  the  verdict  or 
court's  findings;  then  continue  thus:) 

Whereupon  it  is  adjudged  that  the  complaint  of  the  plain- 
tiff be  dismissed  and  that  the  defendant  recover  of  the  plain- 
tiff his  costs,  which  are  taxed  at  $  ........  —  . 

(Add  date  of  entry.) 


205  JUDGMENTS.  Form  292 

290.  Judgment    for    Plaintiff    on    One    Count    and    for 
Defendant  on  Another,  and  for  a  Set-off  After  Trial 
by  the  Court. 

(FROM  SCHEDULE  B.) 

(Folloiv  the  first  paragraph  of  Form  288,  and  continue  thus'.) 

The  Court,  having  heard  the  parties,  finds  the  issues  for  the 
plaintiff  upon  the  first  count  and  that  $500  is  due  him  thereon ; 
and  also  finds  the  issues  for  the  plaintiff  upon  the  second  count 
and  that  $1,000  is  due  him  thereon;  and  finds  the  issues  for 
the  defendant  upon  both  defenses  to  the  third  count,  and  fur- 
ther finds  his  defense  of  set-off  true,  and  that  $1,040  is  due 
him  thereon. 

Whereupon  it  is  adjudged,  that  the  plaintiff  (name)  recover 
of  the  defendant  (name}  five  hundred  and  twenty  dollars 

($520)  and  his  costs,  which  are  taxed  at  $ making 

in  the  whole  the  sum  of  $ 

(Add  date  of  entry.} 

291.  Judgment  of  Non-suit:   Plaintiff   Not  Appearing  at 
Trial. 

(FROM   SCHEDULE  B.) 

This'  action  came  regularly  on  for  trial  on  the — 
day  of     April,  1912,  before  Justice   (or,  Judge)   A.  B.  at  the 

circuit ;  and  when  called  for  trial  the  defendant 

appeared,  but  the  plaintiff  did  not  appear  to  prosecute  his  ac- 
tion. 

Whereupon  it  is  adjudged  that  the  complaint  of  the  plaintiff 
be  dismissed,  and  that  the  defendant  (name)  recover  of  the 

plaintiff  (name)  his  costs,  which  are  taxed  at  $ 

(Add  date  of  entry.) 

292.  Judgment  of  Non-suit  for  Failure  of  Proof. 

(Follozn'  first  paragraph  of  Form  288.) 

And  the  plaintiff  having  submitted  his  evidence,  and  the 
court,  being  of  opinion  that  it  was  not  sufficient  to  entitle  him 
to  recover,  ordered  judgment  of  non-suit  to  be  entered  against 
him. 

Whereupon  (Follow  Form  291,  last  paragraph). 


Form  293  JUDGMENTS.  206 

293.  Judgment  of  Non-pros  for  Failure  to  File  Reply,  or, 
of  Non-suit  for  Failure  to  Notice  for  Trial. 

The  defendant  filed  an  answer  tendering  an  issue,  but  the 
plaintiff  failed  to  file  a  reply  or  take  any  other  step  in  response 
to  the  answer  within  the  time  limited  by  the  rules  of  Court,  and 
for  that  cause  the  court  ordered  judgment  to  be  entered  against 
him  with  costs. 

(Or,  the  cause  was  at  issue  in  time  for  the  same  to  be  no- 
ticed for  trial  at  the  September  term  of  Court  1912  in 

County,  but  plaintiff  failed  to  service  notice  of  trial  upon  the 
defendant  for  that  term,  and  for  that  cause  the  Court  ordered 
judgment  to  be  entered  against  him  with  costs.) 

Whereupon,  it  is  adjudged  that  the  complaint  of  the  plain- 
tiff (name)  be  dismissed  and  that  the  defendant  (name)  do 
recover  of  the  plaintiff  his  costs  which  are  taxed  at  the  sum  of 
twenty-seven  dollars  and  fifty  cents  ($27.50). 

294.  Judgment  by  Default  Against  Defendant  for  Failure 
to  Plead. 

Plaintiff  served  and  filed  his  complaint,  but  defendant  failed 
to  file  an  answer  or  take  any  other  step  in  response  to  the  Com- 
plaint, and  thereupon  the  damages  of  the  plaintiff  were  as- 
sessed by  the  clerk  of  this  Court  (or,  in  open  court)  at  the 
sum  of  $1,000  (or,  and  thereupon  a  writ  of  inquiry  was  duly  is- 
sued to  assess  the  damages  of  the  plaintiff,  and  after  due  pro- 
ceedings thereon  the  damages  of  said  plaintiff  were  duly  as- 
sessed by  the  verdict  of  the  jury  upon  said  writ  of  inquiry,  at 
the  sum  of  $1,000). 

Whereupon  (Follow  last  paragraph  of  Form  288.) 

295.  Judgment  Against  Defendant  who  Failed  to  Appear 
at  Trial. 

This  action  was  regularly  called  for  trial  before  Justice  (or, 

Judge)  A.  B.,  at  the Circuit  on  October  10,  1912, 

when  the  plaintiff  appeared  and  moved  the  case  for  trial,  but 
the  defendant  failed  to  appear. 

The  plaintiff  was  heard  and  submitted  his  evidence  and  the 
case  was  submitted  to  the  jury  which  thereupon  returned  a 
verdict  in  favor  of  the  plaintiff  and  against  the  defendant 
and  assessed  the  plaintiff's  damages  at  the  sum  of  twelve 
hundred  dollars  ($1,200). 


207  JUDGMENTS.  Form  299 

Whereupon  it  is  adjudged  (Follow  Form  288  last  para- 
graph). 

296.  Summary  Judgment  after  Answer  Struck  Out. 
Afterwards,   upon   proceedings   duly   had   according  to  the 

statute,  the  Court  ordered  the  said  answer  to  be  struck  out  as 
sham  (or,  frivolous). 

Whereupon  (Follow  Form  288  last  paragraph.) 

297.  Judgment  Against  Defendant  on  His  Failure  to  Com- 
ply with  Conditions  of  Leave  to  Defend. 

Afterwards,  upon  proceedings  duly  had,  according  to  the 
statute,  to  strike  out  the  answer  as  sham,  the  defendant  had- 
leave  of  Court  to  defend  upon  condition,  that  (state  the  con- 
dition of  the  leave  lo  defend  which  the  defendant  failed  to  per- 
form), but  defendant  failed  to  comply  with  said  condition ;  and 
because  of  such  failure  the  Court  thereafter,  proceeding  in 
accordance  with  the  statute,  ordered  the  answer  to  be  struck 
out,  and  judgment  to  be  entered  against  said  defendant. 

Whereupon  (Follow  Form  288,  last  paragraph). 

298.  Judgment  without  Pleadings. 

The  parties  submitted  the  foregoing  statement  of  the  case 
for  judgment  without  pleadings;  and  the  cause  was  afterwards, 
on  October  i,  1912,  heard  (or,  if  any  issues  were  submitted 
for  trial,  tried)  before  the  Judge  (or,  Justice),  named  in  the 

statement  of  the  case  (or,  before  the  Hon who  was, 

by  consent  of  all  parties,  substituted  for  the  trial  Judge  named 
in  the  statement  of  the  case). 

And  the  parties  having  been  heard  by  their  respective 
counsel,  the  said  Judge  (or,  Justice)  finds  the  issues  as  fol- 
lows: (Copy  findings}. 

Whereupon,  it  is  adjudged  (Follow  Form  288  or  289,  or 
other  appropriate  Forms  of  Judgment) . 

299.  Judgment  for  One  of  Two  Plaintiffs  Claiming  in  the 
Alternative  Against  Defendant. 

(NOTE:  See  Pr.  Act,  Sections  4,  20:  See  Form  of  Com- 
plaint, No.  86.) 

(Follozv  Form  288  to  end  of  first  paragraph.) 
The  cause  having  been  heard  and  the  Court  being  of  opinion 
that  upon  the  proper  construction  of  the  contract  stated  in  the 


Form  300  JUDGMENTS.  20s 

complaint,  as  between  the  two  plaintiffs,  the  plaintiff  C.  D.  is 
entitled  to  recover  from  the  defendant. 

And  the  issues  of  fact  having  been  submitted  to  the  jury, 
they  returned  their  verdict  as  follows:  (Copy  verdict.} 

(Follow  the  last  paragraph  of  Form  288  and  add  at  the  end 
thereof)  and  that  the  complaint  be  dismissed  as  to  the  plain- 
tiff A.  B.,  without  costs. 

(Add  dale  of  entry.) 

300.  The  Same,  when  the  Trial  Court  Reserved  a  Ques- 
tion of  Law  and  Submitted  the  Case  to  the  Jury  Upon 
Alternative  Propositions  of  Law,  Under  Pr.  Act 
(1912)  Section  19. 

(See  Form  of  Complaint  No.  86.) 
(Follow  Form  288  to  end  of  first  paragraph.) 

The  cause  having  been  heard,  the  Court  reserved  the  question 
as  to  which  one  of  the  two  plaintiffs  was  entitled,  upon  the 
true  construction  of  the  contract  stated  in  the  complaint,  to  re- 
cover against  the  defendant; 

And  the  Court  also  submitted  the  issues  of  fact  to  the  jury 
upon  alternative  propositions  of  law ;  to  wit,  that  if  they  find 
said  issues  against  the  defendant  they  should  find  them  in  favor 
of  the  plaintiff  A.  B.,  or  in  the  alternative,  in  favor  of  the 
plaintiff  C.  D.  according  to  the  then  future  determination  by 
the  Court  of  the  question  of  law  reserved  as  aforesaid. 

And  thereupon  the  jury  returned  their  verdict  as  follows : 
namely,  the  jury  finds  the  issues  of  fact  against  said  defend- 
ant and  in  favor  of  the  plaintiff  A.  B.,  or,  in  the  alternative, 
in  favor  of  the  plaintiff  C.  D.  according  to  the  future  determi- 
nation by  the  Court  of  the  question  which  one  of  said  two 
plaintiffs,  as  between  themselves,  is  entitled  to  recover ;  and 
the  jury  assess  the  damages  of  the  plaintiff,  who  may  be  en- 
titled to  recover,  at  the  sum  of  $ 

And  the  Court  afterwards  heard  argument  by  counsel  of  the 
respective  parties  upon  the  question  so  reserved,  and  is  of 
opinion  that  upon  the  true  construction  of  said  contract,  as 
between  the  two  plaintiffs,  the  plaintiff  C.  D.  is  entitled  to 
recover  from  the  defendant. 

Whereupon  it  is  adjudged  (/o//ozc>  last  paragraph  of  Form 
288  and  add  at  the  end  thereof}  :  and  that  the  complaint  be  dis- 
missed as  to  the  plaintiff  A.  B.,  without  costs. 

(Add  date  of  entry.) 


209  JUDGMENTS.  Form  302 

301.  Judgment  Against  One  of  Two  Defendants  Sued  in 
the  Alternative. 

(NOTE:  See  Pr.  Act.  Section  6,  20:  See  Form  of  Com- 
plaint No.  59.) 

(Follow  first  paragraph  of  Form  288.) 

The  cause  having  been  heard  and  submitted  to  the  jury,  they 
returned  their  verdict  as  follows:  The  jury  finds  that  the  de- 
fendant C.  D.  was  the  agent  of  the  defendant  E.  F.  as  alleged 
in  the  complaint  and  was  authorized  to  sell  the  securities 
mentioned  therein ;  and  they  find  all  the  other  issues  of  fact  in 
favor  of  the  plaintiff  and  against  the  defendant  E.  F. ;  and 
they  assess  the  damages  of  the  plaintiff  at  $ 

(Folloic  last  paragraph  of  Form  288,  inserting  the  name  of 
the  defendant  against  idiom  the  rerdict  was  rendered,  and  add 
at  the  e\nd  thereof)  :  and  that  the  complaint  be  dismissed  as  to 
the  defendant  C.  D.  without  costs.  (Or  and  that  the  plain- 
tiff recover  of  the  said  defendant  C.  D.  his  costs,  as  against 
the  said  C.  D.,  which  are  taxed  at  the  sum  of  $ ) 

(Add  date  of  entry.} 

302.  Judgment  (Against  Surety  and  Principal)  Allowing 
Surety  the  Benefit  of  the  Judgment. 

NOTE:  This  form  of  judgment  should  be  used  only  when 
the  relation  of  surety  (or  guarantor)  and  principal  appears  in 
the  pleadings  and  is  admitted  therein,  or  is  found  by  the  ver- 
dict. 

See  Pr.  Act.  (1903)  Sec.  35.  This  section  applies  only  to 
suits  on  bills  or  notes;  but  under  Pr.  Act  (1912)  sec.  20,  it  is 
suggested  that  the  following  form  may  be  used  if  desired  in 
behalf  of  any  surety  or  guarantor  who  is  sued  with  his  princi- 
pal under  the  provisions  of  Rule  7.  Section  179  of  the 
Practice  Act  (1903)  authorizes  the  Court  to  control  the  judg- 
ment and  execution  in  such  case,  for  the  benefit  of  the  surety. 

(Follow  Form  288  to  the  end;  then  as  follows)  : 

And  it  appearing  that  the  defendant  C.  D.  is  liable  for  the 
said  damages  as  surety  (or,  guarantor)  for  A.  B.,  it  is  further 
ordered  and  adjudged  that  if  this  judgment  be  paid  by  said 
C.  D.,  it  shall  not  be  considered  as  satisfied  as  against  the  de- 
fendant A.  B.,  but  the  said  C.  D.,  on  application  to  this  court 
(or  a  Justice  thereof)  and  on  notice  to  the  said  C.  D.,  and 
upon  terms,  shall  have  the  full  benefit  and  control  of  :-aid 


Form  3023  JUDGMENTS.  2JO 

judgment  for  the  purpose  of  compelling  repayment  from  the 
said  A.  B. 

(Add  date  of  entry.}  . 

302a.     Judgment  on  a  Cross-Complaint  between  Co-De- 
fendants, on  an  Agreement  to  Indemnify. 

(See  Form  121.) 

(Add  at  the  end  of  an  appropriate  form  of  judgment  for 
plaintiff)  : 

And  it  appearing  by  the  cross-complaint  filed  by  the  defend- 
ant, John  Doe,  against  his  co-defendant,  James  Smith,  and  the 
answer  of  said  Smith  thereto  (and  the  said  verdict),  (or,  upon 
which  cross-complaint  judgment  interlocutory  was  entered 
against  said  Smith  for  want  of  an  answer)  that  the  defendant, 
James  Smith,  is  primarily  liable  to  plaintiff,  and  the  defend- 
ant, John  Doe,  is  secondarily  liable  to  plaintiff,  it  is  further 
ordered  and  adjudged  (continue  as  in  Form  302). 

303.  Judgment  for  Defendant  on  Motion  to  Strike  Out  for 
Failure  to  State  a  Cause  of  Action. 

Defendant  moved  to  strike  out  the  complaint  on  the  ground 
that  it  disclosed  no  cause  of  action ;  upon  which  motion  argu- 
ments for  plaintiff  and  defendant,  by  their  respective  counsel 
were  duly  heard  and  the  Court,  being  of  opinion  that  the  com- 
plaint disclosed  no  cause  of  action,  ordered  that  the  same  be 
struck  out. 

Whereupon  it  is  adjudged  that  the  complaint  of  the  plain- 
tiff be  struck  out  and  that  the  defendant  recover  from  the 
plaintiff  his  costs  which  are  taxed  at  $ 

(Add  date  of  entry.} 

304.  Judgment  for  Plaintiff  Against  One  of  Two  Defend- 
ants After  a  Separate  Trial. 

A  separate  trial  was  ordered  of  the  issues  joined  between 
the  plaintiff  and  the  defendant,  John  Doe,  and  the  said  issues 
between  the  plaintiff  and  the  said  defendant  were  thereupon 
tried,  in  the  presence  of  their  respective  counsel  before  Justice 

(or,  Judge)    A.  B.,  at  the   Circuit  on  October  5, 

1912.    And  the  said  issues  having  been  submitted  to  the  jury, 
they  returned  their  verdict  as  follows.     (Copy  verdict}. 


211  JUDGMENTS.  Form  306 

Whereupon  it  is  adjudged  that  the  plaintiff  recover  from 

the  said  defendant,  John  Doe,  the  sum  of  $ 

(Continue  as  in  Form  288,  last  paragraph). 

305.  Judgment  for  One  of  Two  Defendants  After  Sep- 
arate Trials  Against  Each  and  a  Previous  Judgment 
Against  the  Other. 

A  separate  trial  in  this  cause  was  heretofore  ordered,  and 
was  had,  between  the  plaintiff  and  the  defendant,  John  Doe, 
and  thereupon  judgment  was  entered,  on  October  10,  1912, 
upon  the  issues  tried  between  the  plaintiff  and  the  said  John 
Doe,  in  favor  of  the  plaintiff  and  against  the  said  Company 
for  the  sum  of  $ 

Afterwards,  the  issues  joined  in  said  cause  between  the 
plaintiff  and  the  defendant  Richard  Roe  were  tried,  in  the 
presence  of  their  respective  counsel,  before  Justice  (or  Judge) 

A.  B.  at  the Circuit,  on  October  20,  1912.  And 

said  issues  having  been  submitted  to  the  jury,  they  returned 
their  verdict  as  follows:  (Copy  verdict.) 

Whereupon  it  is  adjudged  (follow  last  paragraph  preced- 
ing form}. 

306.  Judgment  Against  an  Executor  (or,  Administrator) 
of  a  Deceased  Co-Contractor  and  Against  the  Sur- 
viving Co-Contractor,  Under  Rule  6. 

(Follow  Form  288  to  and  includiny  the  recital  of  the  ver- 
dict. ) 

Whereupon  it  is  adjudged  that  the  plaintiff  (name)  do  re- 
cover of  the  defendant,  Richard  Roe,  and  of  the  defendant, 
John  Stiles,  executor  of  the  Will  of  James  Fen,  the  sum  of 
(the  whole  amount  of  the  debt  or  damages  awarded  by  the 

verdict)  and  his  costs,  which  are  taxed  at  the  sum  of 

dollars,  making  in  the  whole  the  sum  of 

dollars;*  to  be  levied  (as  to  the  defendant  Tohn  Stiles)  of  the 
goods  and  chattels  which  were  of  the  said  James  Fen  at  the 
time  of  his  death,  in  the  hands  of  the  said  John  Stiles  as  ex- 
ecutor as  aforesaid,  to  be  administered,  if  he  have  so  much  to 
be  administered. 

(State  amounts  in  words  and  figures.) 

NOTE:  //  the  judgment  be  against  the  Executor  personally 
for  the  costs,  then  add  after  the  asterisk: 


Form  307  JUDGMENTS.  212 

The  said  damages,  to  wit,  the  sum  of dollars 

to  be  levied  of  the  goods  and  chattels  of  the  said  James  Fen, 
deceased,  in  the  hands  of  the  said  John  Stiles,  Executor  as 
aforesaid,  to  be  administered;  and  the  said  costs,  to  wit,  the 

sum  of dollars,  to  be  levied  of  the  proper 

goods  and  chattels,  lands  and  tenements,  of  the  said  defendant, 
John  Stiles. 

307.  Judgment  Against  an  Executor  (or,  Administrator), 
as  Such  and  Against  Him  Personally,  Under  Rule 
14  (c). 

(See  Form  40.) 

(Follou1  Form  288  to  and  including  the  recital  of  the  ver- 
dict.) 

Whereupon  it  is  adjudged  that  the  plaintiff  (name)  do  re- 
cover of  the  defendant,  Richard  Roe,  executor  of  the  Will  of 
Thomas  Brown,  the  sum  of  (the  aggregate  of  the  sums  alloived 
by  the  verdict  upon  the  claim  against  the  executor  as  such,  and 
the  claim  against  him  personally)  upon  both  counts  of  the  com- 
plaint, and  his  costs,  which  are  taxed  at  the  sum  of  $ , 

making  in  the  whole  the  sum  of  $ ;  to  be  levied  of  the 

goods  and  chattels  which  were  of  the  said  Thomas  Brown  at 
the  time  of  his  death,  in  the  hands  of  the  said  defendant  as  ex- 
ecutor as  aforesaid  to  be  administered,  if  he  have  so  much  to 
be  administered. 

And  if  he  have  not  so  much  in  his  hands  to  be  administered, 

then  that  $ ,  part  of  the  sum  aforesaid,  being  the 

amount  awarded  by  the  said  verdict  upon  the  count  against 
the  said  defendant  personally,  or  so  much  thereof  as  can  not 
be  made  of  the  goods  and  chattels  of  said  testator,  together 

with  the  said  sum  of  $ ,  for  costs  as  aforesaid,  be 

levied  of  the  proper  goods  and  chattels,  lands  and  tenements  of 
the  said  defendant  Richard  Roe. 

(State  amounts  in  words  and  figures.) 

308.  Judgment  for  a  Writ  of  Mandamus. 

(See  Note  to  Form  17.) 

And  it  is  further  adjudged  that  a  peremptory  (or,  an  alterna- 
tive) writ  of  mandamus  do  issue  against  the  defendant  com- 
manding it*  to  pay  to  the  plaintiff,  the  sum  herein  adjudged 
to  be  paid  by  it  to  the  plaintiff  [or  show*  cause  to  the  con- 
trary]. 


213  MANDAMUS.  Form  309 

//  a  mandamus  is  desired  to  compel  a  municipality  to  in- 
clude in  the  ta.v  levy  the  amount  of  the  judgment  recovered 
against  it,  follow  the  above  Form  to  the  asterisk,  then  con- 
tinue thus:  to  assess  and  levy  upon  all  the  property  within 
said  (municipal  corporation},  in  addition  to  the  regular  taxes 
(of  said  municipal  corporation)  the  amount  due  upon  this 
judgment,  or  upon  any  execution  which  may  be  duly  issued 
thereon  with  interest  to  the  time  when  the  same  shall  be  paid, 
and  to  pay  to  the  plaintiff  the  said  amount  with  interest  out 
of  said  tax  when  collected  (or  show  cause  to  the  contrary). 
See  Shackelton  vs.  Town  of  Guttenbcrg,  39  N.  J.  L.,  660; 
Improvement  Co.  vs.  Sea  Isle  City,  61  N.  J.  L.,  476, 

NOTE:  As  the  Practice  Act  (1912),  Section  3,  authorises 
the  (Supreme)  Court  to  award  a  mandamus  in  an  action 
at  law,  it  would  seem  to  be  unnecessary,  after  a  judgment  in\ 
this  form,  to  follow  the  procedure  prescribed  in  Section  34  of 
the  statute  respecting  executions  against  municipal  corpora- 
tions. Comp.  St.  p. 


Other  Forms. 

309.     Preliminary  Reference — Commissioner's  Summons. 
(FROM  SCHEDULE  B.) 

(Title.)     Commissioner's  Summons. 
To ,  Defendant: 

On  motion  of  plaintiff,  you  are  hereby  notified  that  on  the 
loth  day  of  January,  instant,  at  10  o'clock  A.  M.,  at  my  office, 

No.  10 street,  Trenton,  I  will  hear  any  motions 

that  may  be  made  by  either  party  in  the  above-stated  cause 
respecting  the  pleadings,  issues,  evidence,  or  any  other  matter 
preliminary  to,  and  in  preparation  for,  trial ;  and  will  make  such 
order  respecting  the  same  as  the  parties  respectively  may  be 
entitled  to. 

Dated  January  4,  1912. 


Supreme  Court  Commissioner. 


Form  310  COMMISSIONER'S  ORDER.  214 

310.     Commissioner's  Order. 

(FROM  SCHEDULE  B.) 
(Title.)          Commissioner's  Order. 

Having  heard  the  parties  (or,  having  heard  the  plaintiff,  the 
defendant  not  appearing,  though  duly  summoned),  it  is  ordered 
that: 

1.  PLEADINGS.     Complaint  be   amended   by  stating  where 
the  contract  therein  stated  was  made. 

2.  ISSUES.     The  issue  to  be  tried  upon  the  first  count  is 
whether  or  not  the  letter  dated  June  i,  1911,  written  by  plain- 
tiff to  defendant,  accepting  defendant's  offer  to  sell,  was  mailed 
within  a  reasonable  time  after  receipt  of  that  offer. 

3.  PARTICULARS.     Plaintiff,   within  ten  days,   serve   fuller 
particulars  as  to  the  items  of  his  claim  under  the  second  count. 

4.  ADMISSIONS.     It  is  admitted  that   (state  relevant  facts 
ivhich  are  not  disputed,  other  than  those  admitted  in  the  plead- 
ings). 

5.  INTERROGATORIES.     The  first,  fifth,  seventh  and  tenth  are 
struck  out.     All  others  allowed. 

6.  DISCOVERY  OF  DOCUMENTS.     Plaintiff,  within  five  days, 
serve   a  list  under  oath  of  all   documents  under  his   control 
which  are  relevant  to  any  issue  in  the  cause,  except  his  per- 
sonal diaries  and  his  books  of  account. 

7.  (Continue  as  to  other  matter,  if  any.) 
Dated  January  10,  1912. 

(Signed) 


Supreme  Court  Commissioner. 

311.     Statement  of  the  Case  for  Judgment  Without  Plead- 
ings. 

(FROM  SCHEDULE  B.) 

(Title.)  Statement  of  the  case  for  judgment  without 
pleadings. 

The  parties  submit  the  following  case  for  judgment  without 
pleadings : 

i.  On  January  i,  1911,  at  Trenton,  by  written  agreement 
(a  copy  of  which  is  annexed),  defendant  employed  plaintiff 
for  an  indefinite  period  at  a  salary  of  $500  a  month,  to  act 
as  manager  of  defendant's  manufacturing  business. 


215  FINDINGS   OF  COURT.  Form  312 

2.  Under  said  agreement,  plaintiff  acted  as  manager  of  said 
business   from  January    i,    1911,   to  January    I,    1912,   when 
he  was  discharged  from  said  employment  by  defendant,  without 
notice. 

3.  Plaintiff  claims: 

(a)  That   he   fully   performed   all   his   duties  under   said 
agreement  in  an  efficient  manner  and  gave  no  cause  for  said 
discharge. 

(b)  That  under  the  terms  of  said  agreement,  he  could  not 
be  lawfully  discharged  without  thirty  days'  prior  notice. 

(c)  That  he  is  entitled  to  $500  damages. 

4.  Defendant  claims : 

(a)  That  plaintiff  acted  negligently  in  the  performance  of 
his  duties  under  said  agreement,  in  that  he  neglected  to  make 
prompt  shipment  of  goods  to  customers  upon  the  orders  named 
and  on  the  dates  stated  in  the  annexed  list. 

(b)  That  for  the  causes  aforesaid  plaintiff  was,  under  the 
terms  of  the  said  agreement,  liable  to  discharge  without  notice. 

(c)  That,  by  the  proper  construction  of  said  agreement, 
plaintiff  was  not  entitled  to  notice  of  discharge  in  any  case. 

5.  The  above  issues  are  submitted  for  trial  without  a  jury. 

6.  The  Honorable Justice   of  the   Supreme 

Court  (or  Judge  of  the  Circuit  Court),  is  agreed  upon  as  the 
Judge  who  shall  hear  and  determine  this  case. 

7.  No  appeal   shall  be  taken   from  the  judgment  entered 
on  his  findings. 

Dated  February  10,  1912. 

(Signed) 

E.  F. 

Attorney  of  Plaintiff. 
G.  H. 

Attorney  of  Defendant. 

NOTE  :     Paragraphs  6  and  7  may,  or  may  not,  be  used,  ac- 
cording to  the  agreement  of  the  parties. 

312.     Findings  of  the  Court  on  a  Trial  Without  a  Jury. 
(FROM  SCHEDULE  B.) 

(Title.)          Findings. 

This  case  was  tried  before  Justice  (or  Judge) 

without  a  jury  at  the Circuit  on  December 

10,  1911. 


Form  313  NOTICE  OF  APPEAL.  216 

After  hearing  the  evidence  and  counsel  for  plaintiff  and  for 
defendant,  the  court  finds : 

1.  The  statements  in  paragraph  i  of  the  first  count  of  the 
complaint  are  supported  by  the  evidence. 

2.  The  statements  in  the  second  count  are  not  supported 
by  the  evidence. 

(Continue  statement  of  findings,  dealing  z^itli  each  paragraph 
of  the  complaint  or  answer  separately,  unless  a  finding  upon 
part  of  them  is  conclusive  of  the  case.) 

3.  The  court  rules  that  the  letter  from  plaintiff  to  defend- 
ant, dated (Exhibit  P.  2),  and  defendant's  reply, 

dated (Exhibit  P.  3),  constitute  a  memorandum  in 

writing  within  the  meaning  of  the  statute  of  frauds. 

4.  The  court  rules  that  the  third  count  of  the  complaint 
discloses  no  cause  of  action,  because  it  states  no  special  damage. 

5.  The  court  finds  for  the  plaintiff  and  against  the  defend- 
ant upon  the  first  count,  and  in  favor  of  the  defendant  and 
against  the  plaintiff  on  the  second  and  third  counts  of  the  com- 
plaint. 

6.  The  damages  of  plaintiff  on  the  first  count  are  assessed 
at  $ (Signed) 


NOTE  :  See  also,  Judgments,  Form  290  for  another  form  of 
Findings. 

313.     Notice  of  Appeal. 

(FROM  SCHEDULE  B,  MODIFIED  TO  CONFORM  TO  RULE  77  AS 

AMENDED.) 

(State  name  of  Court  from  zi'hich  the  appeal  is  taken.) 

(State  title  of  the  cause.) 

NOTICE  OF  APPEAL. 

To 

Attorney  of  Plaintiff. 

Take  notice  that  the  defendant  appeals  to  the  Court  of 
Errors  and  Appeals  (or  to  the  New  Jersey  Supreme  Court,  or, 
as  the  case  may  be)  from  the  whole  of  the  judgment  entered 
in  this  cause  (or,  from  so  much  of  the  judgment  entered  in 
this  cause  as  adjudges  that :  state  the  part  of  the  judgment  ap- 
pealed from)  on  the  following  grounds : 


217  GROUNDS  OF  APPEAL.  Form  315 

1.  The  first  count  of  the  complaint  discloses  no  cause  of 
action.     It  fails  to  show  that  (specify  the  particulars  in  which 
the  statement  of  the  cause  of  action  is  deficient}. 

2.  The  letter  dated written  by  plaintiff  to  defend- 
ant was  excluded  from  evidence. 

3.  The  deed  dated made  by  L.  M.  to  S.  T. 

was  admitted  in  evidence. 

The  following  questions  were  overruled : 

4.  To  the  witness  B.  C.  (Copy  the  questions}. 

5.  To  the  witness  C.  D.  (Copy  the  questions}. 
The  following  questions  were  admitted : 

6.  To  the  witness  G.  H.  (Copy  the  questions}. 

J.  The  court  charged  the  jury.  (Copy  the  parts  of  the 
charge  claimed  to  be  erroneous). 

(Signed) 

X.  Y., 
Attorney  of  Appellant. 

NOTE  :  //  the  grounds  of  appeal  are  not  stated  in  the  notice 
of  appeal,  they  must  be  served,  and  filed  in  the  court  of  re- 
view within  thirty  days  after  filing  the  notice  of  appeal  in  the 
court  below.  (Rule  79.)  See  next  Form. 

314.     Grounds  of  Appeal. 

(State  name  of  the  court  to  which  the  appeal  is  taken.} 

John  Doe, 

Plaintiff  and  Respondent   (or, 
Appellant), 


vs. 


Grounds  of  Appeal. 


Richard  Roe, 

Defendant  and  Appellant  (or, 

Respondent) . 

The  Appellant  states  the  following  grounds  of  appeal:    (Fil- 
lou'  Form  313). 

315.     Statement  of  the  Case  on  Appeal. 

(FROM  SCHEDULE  B.,  MODIFIED.) 
(Title.) 

On  Appeal. 
Statement  of  the  Case. 

i.     (Insert  here  copy  of  the  notiee  of  appeal.) 


Form  315          APPEAL-STATEMENT   OF   CASE.  218 

2,.     (Insert  here  the  judgment  record,  Form  287.) 
3.      (Insert  transcript  of  the  stenographer's  notes  of  the  evi- 
dence ivith  the  e.rJiibits  and  the  court's  charge;  or  a  statement 
of  the  evidence  in  the  foil  oiling  form)  : 

3.  Plaintiff's  witnesses  testified  as  follows:     (State  testi- 
mony of  plaintiff's  witnesses,  either  by  question  and  anszver 
or  reduced  to  narrative  form;  introductory  and  unimportant 
matters  should  be  in  narrative  form,  and  all  matters  not  rele- 
vant to  the  questions  raised  on  review  should  be  omitted.) 

4.  Defendant's  witnesses  testified  as  follows :     ( To  be  filled 
up.) 

5.  The  court  charged  the  jury  as  follows:  (Copy  charge.) 

6.  The  court  submitted  to  the  jury  the  following  questions, 
to  which  the  jury  returned  the  following  answers:      (Copy, 
questions  and  answers.) 

7.  Whereupon  the  Court  ordered  a  general  verdict  to  be 
entered  in  favor  of  the  plaintiff  and  against  the  defendant  for 

$ damages  (or  in  lieu  of  6  and  7  when  no  written 

questions  ivere  submitted.    The  jury  returned  a  verdict  for  the 
plaintiff  for  $ damages). 

8.  Annexed  is  a  list  of  the  documentary  evidence  relevant 
to  the  questions  on  review,  arranged  in  order  of  their  dates. 

(Signed) 

E.  R, 
Attorney  of  Appellant. 


TO 


(Figures  indicate  the  Form  Number.) 

No.  of 

ACCORD  AND  SATISFACTION.  Form, 

answer  of   198 

ADMINISTRATOR.      (See  Answers,   Complaints,  Judgments; 
under  "executor.") 

AFFIDAVIT. 

of    merits    264 

notice    thereof    to   be   endorsed   on   complaint 265 

for  summary  judgment  285 

ALTERNATIVE.  • 

complaints. 

plaintiffs   in    86 

defendants  in   59 

against  del  credere  agent,  as  such,  or  for  neglect 81 

for  goods  or  their  value  in  replevin 178 

judgment — 

against  defendants;  one  of  two  sued  in  the  alternative.  .  301 

for  plaintiff;  one  of  two  claiming  in  the  alternative....  299 

ANSWERS.     (See  Counter-claim  and  Set-off.) 

ACCEPTANCE,  in  name  of  corporation 191 

was  unauthorized  and  for  plaintiff's  accommodation....  192 

defendant   gave   note   for,   which   is   not  due 235 

accord  and  satisfaction    198 

agent ;  defendant  endorsed  as 199 

alteration  of  instrument  200 

assault ;  defense  of  son  assault  demesne 250 

defense  of  molliter  mantis  imposuit 251 

self-defense    252 

avowry;  answer  in  the  nature  of;  with  counter-claim 263 

award ;    invalidity    of 201 

BAILMENT  ;   denial  of  plaintiff's  title 202 

bankruptcy,  discharge  in 211 

CARRIER,  by ;  answer  that  the  damage  was  by  plaintiff's  fault, 

in   a  suit   for   injury   to   goods 205 

commencement    of    answer 183 

by  infant  defendant  185 

of  separate  answer  by  one  of  several  defendants  who  is 

sued  by  the  wrong  name 184 

compromise     206 

consideration ;    partial    failure    of,    and    part    payment,    with 

counter-claim  for  negligence  and  trespass 215,  236 

credit  has  expired ;  denial  that 210 

contract  as  to  place  of  delivery;  plaintiff's  breach  of 240 

as  to  quality  or  kind  ;  plaintiff's  breach  of 241 

counter-claim  with  answer.      (See  Counter-claim.) '  187 


220  INDEX   TO   FORMS. 

No.  of 
Form. 

DEFENSES  ;  several    190 

inconsistent;  action  for  trespass  on  land 255 

delivery,  plaintiff's  breach  of  contract  as  to  place  of 240 

demurrer  (See  Objection  in  point  of  law.) 186 

denial,  general  188 

with  new  matter    189 

that  credit  has  expired   210 

of  part  of  indebtedness,  of  part  of  delivery,  and  of  part 

of  price  232 

of  the  promise  as  to  part,  and  pleading  payment  as  to 

residue    233 

of  part,  and  tender  of  residue 245 

of  cause  of  action,  with   tender 246 

disclaimer,  with  denial  of  detention  in  replevin 261 

with   general    denial   in    replevin,    and   counterclaim    for 

return  of  goods  and  damages 262 

duress,  by  imprisonment 212 

by  threats   213 

EJECTMENT  ;  defense  of  license 259 

set-off  of  the  value  of  permanent  improvements 260 

escrow;   delivery  was  in  escrow 214 

FRAUDULENT  account  of  loss  given  by  plaintiff;  on  insurance 

policy    219 

fraud ;  note  was  for  goods  sold  by 193 

GAMBLING  ;  debt  was  incurred  by 216 

general   denial    188 

with  new  matter   189 

ILLEGAL  sale  of  liquor ;  note  was  for 196 

seizure ;  by  sheriff ;  to  a  complaint  for 256 

inconsistent    defenses 255 

infancy    ' 217 

infant  defendant ;  commencement  of  answer  by 185 

insanity   218 

insurance ;  extra  hazardous  risk 221 

misrepresentation,   in   life   insurance 222 

failure  to  give  account  of  loss  within  limited  time 223 

indebtedness ;  denial  of  in  part 232 

JUDGMENT  ;  invalidity  of  a   foreign 224 

invalidity  of  domestic,  against  a  non-resident 225 

reversal  of    226 

former ;    for    plaintiff 227 

former ;  for  defendant 228 

LICENSE;  in  an  action  for  trespass  to  personal  property....  258 

in  ej  ectment  259 

lien   for  storage    229 

limitations ;    statute   of 230 

MARRIAGE,  breach  of  promise  of;  that  plaintiff  was  unchaste.  .  203 

married  women's   act    (Sec   Reply.) 209 

malicious  prosecution:  to  an  action  for;  probable  cause....  253 

mechanic's  lien;  denial  of  lien  by  owner  or  mortgagee 248 

claim  of  prior  lien  by  mortgagee.     (See  Mechanic  Lien.)  249 

misrepresentation  ;  to  action  for  life  insurance 222 

tnoliter  manus  imposiiit ;  to  an  action  for  assault 251 


INDEX  TO  FORMS.  221 

Xo.  of 
Form. 

NEGLIGENCE  AND  TRESPASS;  counter-claim  for;  with  answer..  236 

note  was  for  accommodation  and  was  misapplied 194 

was  for  goods  sold  by  fraud 193 

was  given  to  compound  a  crime 195 

was  for  illegal  sale  of  liquor 196 

non-presentment  at  place  of  payment 197 

defendant  endorsed  as  agent,  where  the  complaint  stated 

the  contract  untruly  in  this  respect 199 

payment  of   204 

taken  by  a  corporation  outside  its  powers;  ultra  vires..  208 

defendant  gave  his,  for  an  acceptance  which  is  not  due..  235 
plaintiff  agreed  to  accept  note  of  third  person  in  part 

payment   237 

was  given  for  price  of  sheep:  they  were  diseased 247 

novation,  by  substitution  of  a  new  creditor 231 

OBJECTION  in  point  of  law  under  Rule  26 186 

PAYMENT  ;  by  note    204 

of   residue,   with    denial   of   part   of    debt 233 

of  all  the  goods  were  worth 234 

part    236 

plaintiff  agreed  to  accept  note  of  third  person   in   part 

payment    237 

performance ;   denial   of  plaintiff's   general  allegation   of....  238 
price ;  denial  of  part  of  indebtedness,  of  part  of  delivery  and 

of  part  of  price 232 

privileged  communication;  in  an  action  for  slander 257 

quality;  plaintiff's  breach  of  contract  as  to 241 

RAILROAD  company,  by;  to  an  action  by  a  passenger  for  tres- 
pass     254 

rescission  of  contract   239 

replevin;   denial  of  detention  with   disclaimer 261 

general  denial,  with  counterclaim  for  return  of  goods  and 

damages    ' 262 

answer  in  nature  of  avowry;  counter-claim   for  return 

goods  and  damages   263 

risk ;  insurance,  extra  hazardous   221 

SHAM.     (See  Sham  Answers.) 

sheriff;  to  a  complaint  of  an  illegal  seizure 256 

slander;  in   action   for:   privileged  communication 257 

son  assault  desmesne;  defense  of 250 

statute ;   how   to   plead 277 

storage  lien;    answer   of 229 

surety ;  alleging  an  extention  of  time 242 

alleging  a  change  in  the  terms  of  the  contract 243 

TENDER  :    244 

denial  of  part,  and  tender  of  residue,  of  debt 245 

when  cause  of  action  is  denied 246 

title:    denial  of  plaintiff's  title  by  bailee 202 

trespass;  inconsistent  defenses;  in  action  for  trespass  on  land  255 

defense  of  license ;  trespass  to  personal  property 258 


INDEX   TO   FORMS. 

No.  of 

Form. 

Ultra  I'ircs,  by  corporation 207 

note  was  taken  by  corporation  outside  its  powers 208 

unauthorized  acceptance   in  name  of  corporation 191 

unchastity ;  to  a  complaint  for  breach  of  promise 203 

WARRANTY  ;  counter-claim  for 247 

APPEAL. 

notice  of    313 

grounds  of   314 

statement  of  the  case  on 315 

ARBITRATION.     (See  Complaints.) 

ASSAULT  AND  BATTERY.     (See  Complaints  and  Answers.) 

ATTORNEY.     (See  Complaints.) 

AVOWRY.     (See  Answers.) 

AWARD.     (See  Complaints  and  Answers.) 

BANKRUPTCY.     (See  Answers.) 

BOND.     (See  Complaints.) 

COMMISSIONER'S. 

summons    on    preliminary    reference 309 

order  on  same    310 

COMPLAINTS. 

ACCEPTOR.     (Sec  Bills  of  Ex-change.) 
administrator.     (See  Executor.) 

advertising,  for  31 

agent ;  against,  for  selling  contrary  to  orders 80 

del  credere;  against,  on  his  liability  as  such  and,  in  the 

alternative,   for   neglect 81 

by  an  advertising;  for  services  and  disbursements 109 

alternative ;  against  del  credere  agent  as  such,  or,  in  alter- 
native, for  ne*glect   81 

plaintiffs  in ;  action  against  common  carrier  for  loss  of 

goods    86 

defendants  in  ;  action  on  a  contract  of  sale 59 

replevin   against  pawn  broker,   for  return   of  pledge  or 

damages   for  its  conversion 178 

animals,  mischievious;  knowingly  keeping  a  fierce  dog 176 

arbitration  bond,  on 56 

assault,  for   142 

and  battery,  for ;  special  damages 143 

attorney,  against ;  for  not  collecting  a  note 76 

for  neglecting  to  file  an  answer 77 

for  negligence  in  examining  title 78 

for  money  collected    79 

by ;   for  services    75 

auctioneer,  against ;    for  not  accounting 101 

award ;  on  an    102 


INDEX   TO   FORMS.  223 

No.  of 
Form. 

BAGGAGE  ;  against  a  carrier  for  loss  of  88 

bailee ;  against,  for  misuse  of  property  lent 122 

against,  for  negligence  123 

against,  for  injury  to  goods   hired 124 

against   for  negligence  in   carrying  goods 125 

bank  ;  against,  on  a  certified  check 51 

bill   of  exchange,   on   a;    endorsee   against   endorser 47 

endorsee  against  drawer,  acceptor  and  endorser 48 

drawer  against  acceptor  41 

payee   against    acceptor    42 

first  endorsee  against  acceptor   43 

subsequent   endorsee   against   acceptor    44 

directed  by  drawer  to  himself  and  accepted  by  him 45 

payee  against   drawer   for  non-acceptance    46 

board  and  lodging ;   for   ill 

bond  conditioned  to  pay  money ;  on  a 52 

other  than  for  the  payment  of  money;  on  a 53 

another  form,  not  annexing  a  copy  of  the  bond 54 

for  the  fidelity  of  a  clerk ;  on  a 55 

arbitration  ;   on   an 56 

book  account ;  on  a 18 

another  form  of  the  same   19 

broker ;  against  a  ;  for  proceeds  of  note  discounted too 

by,    for   commissions 26 

builder ;   against ;   for  defective  work 94 

for  not  completing  his  work;  special  damages 95 

by.  on  a  written  contract  modified  by  parol,  with  claim 

for  extra  work  -. 96 

business ;    against   seller   by   a   purchaser   of   a   business   for 

breach  of  covenant  not  to  compete 99 

CARPENTER,  by ;   for  carpentry 30 

carrier;  action  against,  for  loss  of  goods;  plaintiffs  in  alter- 
native      86 

against,  for  non-delivery  in  a  reasonable  time 87 

for  loss  of  baggage 88 

for  losing  goods 89 

counter-claim  against,  for  negligence 267 

check ;    payee   against   drawer 49 

endorsee    against   drawer   and    endorser 51 

collision  of  wagons :   negligence 139 

commissions  of  broker,  for 26 

commencement  and  conclusion  of 4 

by  an  infant   12 

by  an  informer  in  an  action  qui  tain 13 

conclusion  of  complaint 6 

by   executor   or   administrator 7 

against  an  executor  as  such,  and  against  him  personally. .  8 
by  husband  and  wife,  for  injuries  to  wife,  with  separate 

claims    by    husband 9 

by  plaintiffs  having  joint   and  several   claims 10 

against    several    defendants    on    separate    claims 11 

conspiring  to  cheat ;   for 164 

contribution ;    for    112 


224  INDEX  TO  FORMS. 

No.  of 
Form, 
contract ;  on  written,  modified  by  parol,  with  claim  for  extra 

work,   by   builder • 96 

to  convey  land ;  on 72 

to  purchase  land ;  on 73 

conversion  of  goods ;   for 161 

another    form   of    same 162 

by  an  executor   163 

count;  one,  for  several  instalments  of  rent 82 

covenant  not  to  compete ;  on,  by  purchaser  of  a  business 99 

of    seizin ;    on 66 

against    encumbrances ;    on 67 

for    quiet    enjoyment;    against    landlord;    special    dam- 
ages      68 

against  tenant  for  breach  of  covenant  to  repair 69 

against   landlord   for  same ;    special   damages 71 

covenant  of  warranty  of  title ;   on 65 

criminal  conversation ;    for 159 

cross-complaint  between  co-defendants,  on  an  agreement  to 

indemnify    121 

DAMAGES  ;  special. 

on  warranty  of  a  horse  sold 63 

on  covenant  for  quiet  enjoyment,  against  landlord 68 

against  landlord  for  breach  of  covenant  to  repair 71 

for  loss  of  rent ;  against  a  builder 95 

negligence ;    against    a    railroad    company    for    personal 

injuries     127 

negligence :  against  a  physician  for  unskillful  treatment  128 

negligence;  against  a  surgeon  for  an  unskillful  operation  129 

assault  and  battery   143 

malicious    prosecution    153 

libel    155 

slander    157 

another  form  for  same 158 

damages,  exemplary;   trespass  to  goods 147 

trespass  to  goods  and  person 148 

deceit.     (See  Fraud.) 

deficiency;  upon  sale  of  land,  on  foreclosure  of  mortgage. ...  57 

defective  work ;  against  a  builder  for 94 

delivery ;  how  to  allege  it 64 

demurrage;  for,  and  damages  in  the  nature  of  demurrage 106 

devisee    of    land    against    heir ;    ejectment i68a 

distress,   wrongful    177 

dismissal,   wrongful;   employee   suing  for   services no 


INDEX  TO   FORMS.  225 

No.  of 
Form. 

EASEMENT  ;  obstruction  of  a  private  way 174 

public   way ;   obstruction   of 175 

ejectment;  mesne  profits  and  injury  to  the  property 168 

devisee   of    land   against   heir i68a 

grantee  against  grantor  who  refuses  to  give  possession.  .  i68b 

electric  wire  causing  death;   negligence 136 

endorsee ;    (See  Bill  of  Exchange,  Check,  Note  and   Ware- 
house receipt). 

encumbrance ;    on   covenant    against 67 

escape;   against  a  sheriff  for  an 169 

executor;  on  a  joint  note,  against  one  of  the  makers  and  the 

the  executor  of  the  other 39 

against  an ;  upon  separate  notes ;  one  made  by  testator, 
and  the  other  by  the  executor    for  the  benefit  of  the 

estate    '. 40 

of  lessee;  against,  for  rent  due  before  lessee's  death....  70 

conversion  of  goods  ;  by  an 163 

by ;  on  a  life  insurance  policy 93 

FORECLOSURE  of  mortgage;  for  deficiency  upon  sale  of  land.  .  57 

fraud ;    for  conspiring  to   cheat 164 

in  concealing  the  insolvency  of  a  third  person 165 

in  sale  of  horses 166 

in  sale  of  a  business  167 

GOODS  ;  for  loss  of 

against  a  carrier  for  losing 89 

trespass   to    146 

trespass   to;   exemplary   damages 147 

trespass  to  goods  and  person;  exemplary  damages 148 

trespass  on  lands  and  to 152 

conversion  of 161 

another  form  of  same 102 

guarantee  of  a  precedent  debt ;  on  a 107 

HEIR;  ejectment  against,  by  devisee  of  land i68a 

husband ;  against,  for  necessaries  supplied  to  his  wife 113 

and  wife;   for  injuries  to  wife  and  separate  claims  by 

husband    9 

INDEMNITY;  cross-complaint  between  co-defendant  for 121 

infant;  by,  commencement  and  conclusion  of  complaint 12 

inn  keeper ;  against,  for  loss  of  goods 90 

insurance;  on  a  policy  against  fire 92 

by  executor,  on  a  life  insurance  policy 93 

JUDGMENT  ;  on  a  foreign 58 

LAND  ;  on  a  contract  to  purchase 73 

on  contract  to  convey 72 

for  trespass  on  with  cattle 151 

for  trespass  on 150 

for  trespass  on,  land  and  the  goods 152 

landlord  ;  against ;  on  covenant  for  quiet  enjoyment 68 

for  breach  of  covenant  to  repair:  special  damages 71 

lease ;  by  surety  (on  a  lease)  against  his  principal 85 

libel;  for  154 

with  special  damages  155 

lodging  and  board;    for in 


226  INDEX  TO   FORMS. 

No.  of 
Form. 

MANDAMUS  ;  prayer  for  writ  of 17 

marriage ;   for  breach  of  promise  of 105 

married  woman ;  by,  with  separate  claims  by  husband ;  con- 
clusion      9 

malicious    prosecution;    with    special    damages 153 

mesne  profits;  and  for  injury  to  property,  in  ejectment 168 

mechanic's  lien;  against  owner  by  laborer  or  materialman. .  114 
mechanic's  lien ;  the  same,  when  there  was  no  express  prom- 
ise or  when  prices  were  not  agreed  on 115 

when  mortgagee  is  made  a  party  defendant 116 

against  builder,  and  owner;  contract  not  filed 117 

by    contractor    against    owner 118 

against   owner,   on   a   stop-notice 119 

where  owner  has  paid  contractor  in  advance  of  the  terms 

of  the  contract   T. 120 

mill ;    for    diverting   water    from    a    mill 173 

money  lent ;   for 20 

paid  at  the  request  of  another 21 

paid  by  mistake   22 

received  for  plaintiff's  use 23 

paid  for  defendants  use 24 

on  a  note  or  other  written  instrument  for  the  p-ayment 

of  money  32 

against  an  attorney  for  money  collected 79 

mortgage ;  on  foreclosure  of ;  for  deficiency  upon  sale  of  land  57 

NECESSARIES  supplied  to  wife  without  husbands  request....  113 
negligence :   against  bailee  without  reward    (and  see  Supra, 

"A  ttorney")    123 

against  bailee  for  injury  to  goods  hired 124 

against  bailee  carrying  goods  for  hire 125 

for  driving  a  horse  immoderately 126 

against  a  railroad  company  for  personal  injuries;  special 

damages   127 

against  a  physician  for  unskillful  treatment;  special  dam- 
ages     128 

against  a   surgeon   for  an    unskillful    operation,    special 

damages 129 

against  a  watch-maker   130 

accident  caused  by  obstructing  street 131 

defendant's  servant  allowed  a  weight  to  fall  on  plaintiff  132 

against  warehouseman   for  loss  of  goods 133 

against  warehouseman  for  injury  to  goods 134 

against  wharfinger   135 

death  caused  by  electric  wire 136 

accident  at  railroad  crossing 137 

trolley  accident   138 

collision  of  wagons 139 

leaving  open  a  cellar  area  adjoining  street 140 

against  telegraph  company  for  not  transmitting  message  141 


INDEX  TO  FORMS.  227 

No.  of 
Form, 
note:  on  a;  or  other  written  instrument  for  the  payment  of 

money    32 

another  form  for  the  same,  against  maker  and  endorser  33 
against  person  accommodated  by  maker  of  accommodation 

note   34 

averment  of  excuse  for  non-presentment  of -  35 

averment  of  waiver  of  notice  of  non-payment  of 36 

same,  where  demand  and  notice  were  both  waived.  .  37 
on  a ;  by  a  surviving  p<ayee  and  the  administrator  of  a 

deceased  payee  38 

on  a  joint  note;  against  one  of  the  makers  and  against  the 

executor  of  the  other 39 

against  an  executor  upon  separate  notes ;  one  made  by 
testator  and  the  other  by  the  executor  for  the  benefit 

of  the  estate  40 

broker;  against  a  note  broker  for  proceeds  of  note  dis- 
counted      100 

non-delivery,  within  a  reasonable  time;  against  a  carrier  for  87 

nuisance  ;  maintaining  a  slaughter  house 170 

fouling  a  stream  171 

OBSTRUCTION  ;  of  a  private  way 174 

of  a  public  way   175 

PAYEE.     (See  Bill  of  Exchange.) 

partnership ;  how  to  allege  it 45,  51 

promise;  on  a  promise  made  to  a  third  person  to  pay  money 

to  plaintiff,  making  the  former  a  defendant 108 

Quantum  Meruit,  for  services 25 

for  the  hire  of  a  piano,  with  damages  for  conversion.  . . .  103 

quiet  enjoyment;  against  landlord;   special  damages 68 

RAILROAD  ;  accident  at  a  crossing 137 

company;  against,  for  personal  injuries;  special  damages  127 

company;  against,  for  unlawful  ejection  from  train 144 

rep-air;  against  tenant  for  breach  of  covenant  to  repair....  69 

against  landlord  for  breach  of  covenant  to  repair 71 

replevin ;  against  pawn  broker  for  return  of  pledge ;  alterna- 
tively for  damages  for  its  conversion 178 

plaintiff  claiming  a  general  property  in  the  goods 179 

plaintiff  claiming  a  special  property  in  the  goods 180 

for  unlawful  detention  when  the  taking  was  lawful 181 

rent;  for   ' 98 

against  a  builder  for  not  completing  his  work;   special 

damages  for  loss  of  rent 95 

against   sureties   for  payment  of 82 

against  an  executor  of  lessee  for  rent  due  before  testa- 
tor's death   70 

reversion,  injury  to ;  waste 172 


228  INDEX   TO   FORMS. 

No.  of 

Form. 

SALE:   for  the  price  of  goods  delivered  to  a  third  party  at 

defendant's  request 60 

on  agreement  to  answer  for  price  of  goods  sold  to  a  third 

person    84 

for  not  delivering  goods  sold 61 

by  vendee  of  chattels  on  failure  of  title 62 

on  warranty  of  a  horse ;  special  damages 63 

for  goods  made  to  order,  by  sample,  and  not  accepted . .  64 

fraud  in  ;  sale  of  horse  (Sec  Fraud.) 166 

sale  of  business  167 

salary ;   for   97 

sample ;  for  goods  made  to  order  by  sample,  and  not  accepted  64 

services,  quantum  meruit 25 

in  compiling  and  editing  a  book 27 

of  an  architect  28 

for   tuition    29 

for   carpenter    work    30 

for  advertising   31 

of  an  attorney  on  an  implied  contract  to  pay 75 

sheriff;    against     sheriff   and    execution    creditor    for    illegal 

seizure    145 

against ;   for  an  escape 169 

set-off   (See  title  Set-off.} 

seduction ;  for  160 

seizin ;    on  covenant  of 66 

slander ;  for   156 

with  special  damages  157 

statute ;   how   to   plead 277 

street ;  accident  caused  by  obstruction 140 

leaving  open   a  cellar  area   adjoining;    negligence 131 

sureties ;  against,  for  payment  of  rent 82 

and  principal;  against,  on  contract  for  services 83 

surety ;  by,  against  his  principal  (on  a  lease) 85 

TELEGRAPH  company;  against,  for  not  transmitting  message.  .  141 

tenant ;  against,  on  breach  of  covenant  to  repair 69 

title ;  by  vendee  of  chattels,  on  failure  of 62 

trespass;   against  a  railroad  company  for  unlawful  ejection 

from   train    144 

against  sheriff  and  execution  creditor  for  illegal  seizure  145 

to  goods    146 

exemplary  damages    147 

to  goods  and  person ;   exemplary  damages 148 

for   taking   and    riding   plaintiff's    horse 149 

on    lands    • 150 

with    cattle     151 

and    to    goods     152 

trolley  accident ;   negligence 138 

tuition  ;  for 29 

USE  and  occupation ;   for 74 


INDEX  TO  FORMS.  229 

No.  of 
Form. 
WARRANTY  ;  on  sale  of  a  horse 63 

covenant   of,   in   a   conveyance 65 

warehouse    receipt ;    by    endorsee    thereof    91 

warehouseman  ;  against,  for  negligent  loss  of  goods 133 

for    injury    to   goods    134 

waste ;    injury   to    reversion 172 

water ;  for  diverting  from  a  mill 173 

way ;    private ;    obstruction    of 174 

public ;    obstruction    of 175 

wharfinger  ;  against,  for  negligence 135 

CORPORATION.      (See  Complaints  and  Answers.) 

COUNTER-CLAIM. 

answer,  with    187 

answer  to ;  general  denial  with  new  matter 270 

assault    and    battery ;    for 252 

commencement   of    266 

carrier ;   against,   for  negligence 267 

for  return  of  goods  and  damages,  with  answer  in  the  nature 

of  an   avovvry    263 

for  negligence  and  trespass,  with  answer 236 

for  infecting  sheep  with  disease,  with  answer  of  false  war- 
ranty       247 

for  return  of  goods  and  damages,  in  replevin,  with  answer  262 

DAMAGES.     (See  Complaints  and  Answers.) 

DEMURRER. 

notice  of  motion  to  strike  out  in  lieu  of  demurrer 182 

DECEIT.     (See  Complaints,  under  Fraud.) 

delivery ;  how  to  allege,  tender  of  it 64 

DISCLAIMER.       (See  Answers.) 

DISTRESS.     (See  Complaints.) 

DURESS.     (See  Answer,  Reply.) 

EASEMENT.     (See  Complaints.) 

EJECTMENT.      (See  Complaints  and  Answers.) 

EXECUTOR.     (See  Answers,  Complaints  and  Judgment.) 

FINDINGS. 

of    court    312 

FIRE  INSURANCE. 

complaint ;    on   policy  of 92 

FOREIGN  STATUTE. 

reply  of ;  to  answer  of  married  women's  act 277 

FORECLOSURE  OF  MORTGAGE.     (Sec  Co  in  plaints.) 
GENERAL  DENIAL.     (Sec  Answers  and  Reply.) 
HUSBAND  AND  WIFE.     (See  Complaints  and  Answers.) 

INCORPORATION. 

averment  of   15 

INFANT.     (See  Complaints  and  .Inswcrs.) 


230  INDEX  TO  FORMS. 

No.  of 
INN  KEEPER.     (See  Complaints.)  Form. 

INSURANCE.     (See  Complaints  and  Answers.) 

JUDGMENT. 

against  a   defendant   for   failure   to   plead 294 

defendant  who  failed  to  appear  at  trial 295 

defendant  on  his   failure   to  comply  with  conditions  of 

leave  to   defend    297 

one  of  two  defendants  sued  in  the  alternative   301 

surety  and  principal  allowing  surety  the  benefit  of  the 

judgment     302 

an    executor   of   a    deceased    co-contractor,    and    against 

the   surviving  co-contractor 306 

an  executor  as  such,  and  against  him  personally 307 

for  writ  of  mandamus  308 

plaintiff   on   verdict    288 

defendant  on  verdict  289 

plaintiff  on  one  count :  for  defendant  on  another,  and  for 

a  set-off  after  trial  by  court 290 

for  a  defendant ;  on  motion  to  strike  out  for  failure  to 

state  a  cause  of  action  in  the  complaint 303 

for  plaintiff;  against  one  of  two  defendants  after  a  sepa- 
rate trial    : 304 

for  plaintiff;  against  one  of  two  defendants  after  sepa- 
rate trials  against  each  and  a  previous  judgment  against 

the    other    305 

for  one  of  two  plaintiffs,  claiming  in  the  alternative 299 

of  non-suit;  plaintiff  not  appearing  at  trial 291 

for  failure  of  plaintiff's  proof 292 

non-pros  for   failure  to  file  reply,  or  non-suit  for  fail- 
ure to  notice  for  trial  293 

on    a    cross-complaint;    between    co-defendants 3023 

without    pleadings    : 298 

when   the  trial  court  reserved  a  question   of  law  and   sub- 
mitted the  case  to  the  jury  upon  alternative  propositions 

of  law    300 

foreign;   complaint  on    foreign   judgment.      (See  Answers.)       58 
domestic   (See  Answers.) 
former   (See  Answers.) 

record  of   287 

rules  for  interlocutory  or  final ;  by  default,  against  defendant    281 

for  plaintiff  on  verdict 282 

against  defendant  for  failure  to  comply  with  conditions 

of  leave  to  defend 283 

summary ;  after  answer  struck  out 296 

LANDLORD  AND  TENANT.     (See  Complaints.) 
LIBEL.     (See  Complaints.)  « 

LICENSE.     (See  Answers  and  Reply.) 

LIEN.     (See  Mechanic's  Lien.) 

for  storage ;  answer  claiming 229 

LIFE  INSURANCE. 

complaint  on  policy  of,  by  executor 93 


INDEX  TO  FORMS.  231 

No.  of 
MANDAMUS.  Form. 

prayer    for    writ    of    17 

j  udgment  for  writ  of 308 

MARRIED  WOMEN.     (See  Answers  and  Reply  and  Complaints, 
under  "Husband.") 

MARRIAGE. 

complaint  for  breach  of  promise  to  marry 105 

answer  to  such  complaint  that  plaintiff  was  unchaste 203 

MECHANIC'S  LIENS.     (See  Complaints  and  Answers.) 

writ  of  summons  on 2 

title  of  complaint   on 5 

MERITS. 

affidavit  of    264 

notice  to  be  endorsed  on  complaint 265 

MONEY.     (Se^e  Answers,  Complaints  and  Replies.) 

NEGOTIABLE  INSTRUMENTS.     (See  Complaints  and  An- 
szvers,  under  Check,  Bill  of  Exchange,  or  Note.) 

NOTICE. 

of  motion  to  strike  out,  under  rule  26 182 

of   appeal    313 

to  be  endorsed  on  complaint 265 

OBJECTION. 

in  point  of  law 186 

ORDER. 

commissioner's  order  on  preliminary  reference 310 

leave  to  defend  on  terms ;  for 286 

summary  judgment ;   for 284 

partnership ;   how  to  allege  it 45,  51 

PAYMENT.     (See  Answers.) 

answer  of  license  in  an  action  of  trespass  to 258 

PLEADINGS.       (See    Answers,    Complaints,    Counter-Claims, 
Reply.) 
supplemental    279 

POSTEA. 

form  of   280 

PRELIMINARY  REFERENCE. 

commissioner's    summons    on ! 309 

commissioner's  order  on   310 

PROMISSORY  NOTES.     (See  Complaints  and  Answers  under 

Notes.) 
QUI  TAM. 

commencement  and  conclusion  of  complaint  by  informer..       13 

REJOINDER.     (See  Replies.) 

REAL  ESTATE.     (See  Complaints,  under  Land.) 

REPLEVIN.     (See  Answers  and  Complaints.) 

writ  of  .  3 


2H2  INDEX  TO  FORMS. 

No.  of 
REPLY.  Form. 

of  general  denial    271 

partial   denial    272 

duress,   avoiding  a   release 273 

and  answer  to  counter-claim ;  son  assault  demesne 274 

defendant's  reply  to  above  answer  to  counter-claim 275 

of    revocation    of    license 276 

to  answer  of  married   women's   act ;    contract  made  in   an- 
other   state ;    foreign    statute 277 

rejoinder    to;    duress 278 

SALE.     (See  Complaints.) 

SET-OFF. 

of  the  value  of   permanent   improvements;   in   ejectment...  260 

plaintiff  is  indebted  to  defendant 268 

plaintiff  received  money  for  use  of  defendant 269 

SHAM  ANSWER  OR  DEFENCE. 

order   striking  out    284 

affidavit  for    • 285 

leave  to   defend  on  terms    286 

rule  for  judgment  against  defendant  for  failure  to  comply 

with    conditions    to    leave   to    defend ; 283 

judgment,   after   answer   struck   out. '. 296 

SLANDER.     (See  Answers  and  Complaints.) 

STATEMENT  OF  THE  CASE. 

for  judgment  without  pleadings 311 

on    appeal    315 

STATUTE. 

how   to   plead    277 

SUMMARY  JUDGMENT.     (See  Sham  Answer.) 

SUMMONS. 

writ  of   I 

on  mechanic's  lien    2 

commissioner's;   on  preliminary  reference 309 

SUPPLEMENTAL. 

pleadings    279 

SURETIES.     (See  Answers  and  Complaints.) 
TENDER.     (Sec  Answers.) 

TRIAL  COURT. 

judgment    when    trial    court    reserved    question    of    law    and 

sent  case  to  jury  on  alternative  propositions 300 

findings   of   court 312 

VERDICT.     (See  Judgment,  Rules  for) 
WARRANTY.      (See  Answers  and  Complaints.) 


TO 


(See  also  Table  of  Contents) 

Section  of  Number 

ACTIONS—  (See  Forms  of  Action}  Pr.  Act     of  Rule. 

Pending  when  this  act  takes  effect 33 

ACTIONS  TO  RECOVER  PERSONALTY 51-53 

ADMISSIONS  18  63 

'AFFIDAVIT  OF  MERITS 56 

ALTERNATIVE— 

Parties  in   4, 6  8 

Relief    37 

Questions  of  law 19 

AMENDMENTS 23, 24 

ANSWER— 

(SEE  PLEADINGS.) 

Form  of 39 

Title  of,  p.  62 

General  and  special  denial,  p.  63 .40 

Special  defences  in,  p.  63 40 

How  to  answer,  p.  62 

Objection  of  no  cause  of  action,  p.  63 26 

APPEAL— 

The  subject  discussed,  p.  1 1 

In  lieu  of  writ  of  error 25 

Is  a  re-hearing 25 

When  may  be  used 25 

Is  a  step  in  the  cause 26 

What  it  removes 26 

Judgment  reversed  on,  only  for  substantial  error    27 

New  evidence  upon 28 

Practice  in  Court  of  Errors  upon 29 

Notice  of    77.  78 

Severance  of  parties 78 

Grounds  of  79 

Cross  appeal 80 

Statement  of  the  case  upon 70, 7r»  81 

Security  upon    82 

How  far  rule  to  show  cause  bars 83 

From   interlocutory  orders 15     26,  27,  38,  63 

ASSIGNEE— 

Of  part  of  claim  may  join  in  suit 9 

Assignment  pending  suit,  assignee  may  sue 10 

ii     Fitz 


234  GENERAL  INDEX,  EXCEPT  TO  FORMS. 

Section  of  Number 

BILLS  OF  EXCEPTIONS—  ^r.  Act.     of  Rule. 

Abolished    25 

BILLS  OF  PARTICULARS 18,  63 

CAUSES  OF  ACTION— 
(See  PARTIES,  JOINDER.) 

COMPLAINT— 

(See  PLEADINGS.) 

Annexed   to   summons 54 

Motion    addressed    to 16 

Form  of    35,  36 

Objection  to  the  demand  for  relief 34 

Alternative    relief    37 

CONSTRUCTION  OF  PRACTICE  ACT i 

COSTS— 

Disallowed  at  discretion 30 

Costs  of  defendant  unnecessarily  sued 

COUNTER-CLAIM    12 

COURT  OF  ERRORS— 

Practice  in    29 

CROSS  ACTION— 

Counter-claim  is  a 47 

DAMAGES— 

Assessment  of  67,  68 

Writs  of  inquiry 68 

New  trial  as  to 73 

DEFAULT  IN  PLEADING 14, 16 

DEFINITIONS   2 

DEMURRERS— 

Are  abolished    26 

Motion  in  lieu  of  demurrer 26 

DETINUE,    Sinote 

DILATORY  PLEAS— 

Abolished    38 

DOCUMENTS— 

Annexing  copies  23 

Copies  may  be  demanded 31 

Discovery  of   66 

ELECTION  OF  ACTIONS,  p.  65. 
EJECTMENT  ACT,  Amendment,  p.  69. 

EXECUTION— 

One  writ  on  several  judgments 20 

Trial  judge  may  stay 76 

FAILURE  OF  CONSIDERATION 13 

FINDINGS   OF  FACT 74-75 


GENERAL  INDEX.  EXCEPT  TO  FORMS.       235 

Section  of  Number 

FORMS—  Pr.  Act.    of  Rule. 

Those  annexed  to  rules  to  be  used 4 

FORMS  OF  ACTION— 

The  subject  discussed,  p.  /. 

But  one  form 3 

How  denominated  3 

Does  not  apply  to  prerogative  writs 3 

INCONSISTENT    COUNTS   AND   DEFENCES.  24 

ISSUES— 

Court  may  settle 17 

Settlement   of    17, 63 

Joinder  of  issue 22 

JOINDER  OF  CAUSES  OF  ACTION— 
(See  SEPARATE  TRIALS.) 
The  subject  discussed,  p.  9. 

As  to  plaintiffs 4,  n                6 

As  to  defendants 6, 7            6,  7, 8 

In  ejectment  14  (a) 

By  or  against   executors,   &c 14  (c) 

Joint  claims  with  several  claims 14  (d) 

By  or  against  husband  or  wife 14  (e) 

The  court  may  strike  out 14  (f) 

Objection  for  mis-joinder 15 

JOINDER  OF  ISSUE 22 

JOINDER  OF  PARTIES— 
(See  PARTIES.) 

JUDGE— 

Orders  by   31  2 

JUDGMENTS— 

For  or  against  several  parties 20 

Against  one  joint  contractor 20 

One  execution  on  several  judgments 20  . 

Summary  judgment  15, 16 

Without  pleadings   22 

Form  of    21 

Entered  on  filing  postea  or  relicta 76 

Entered  immediately  after  verdict 76 

Not  reversed  unless  substantial  rights  affected..  27 

MANDAMUS  3 

MECHANICS'  LIEN  ACT;  Amendment,  p.  71. 
MARRIED  WOMEN'S  ACT  (1912),  p.  73- 
MARRIED  WOMEN  AS  PARTIES,  p.  73- 

MERITS— 

Affidavit  of 56 

MISJOINDER  — 

(See  PARTIES;  JOINDER  OF  CAUSES  OF  ACTION.) 


236  GENERAL  INDEX,  EXCEPT  TO  FORMS. 

Section  of  Number 

MOTIONS—  Pr.  Act.    of  Rule. 

Addressed  to  complaint  or  answer 16 

In  lieu   of   demurrer 26 

In  lieu  of  dilatory  pleas 38 

Objecting  to  pleadings 27,  28  • 

Must    specify   grounds 29 

NEW  TRIAL— 

Not  granted  unless  substantial  error 27 

Court  may  take  new  evidence 28 

As  to  part  of  case 72 

As  to  damages  only 73 

Statement  of  case  for 70,  71 

NON-JOINDER— 

(S«e  PARTIES;  JOINDER  OF  CAUSES  OF  ACTION.) 

Objections  to  pleading 27, 28 

Objection  in  point  of  law 26 

Objection  to  rulings  at  trial 25  note 

ORDERS— 

By  a  judge : 31  2 

PARTICULARS— 

Bills  of   18,  63 

PARTIES— 

(See    THIRD    PARTIES;    JOINDER    OF    CAUSES    OF 

ACTION.) 
The  subject  discussed,  p.  7. 

Changes  in,  on  terms 10 

Changes  in  not  to  impair  security,  etc 10 

Who  may  be  plaintiffs 4,  7  6, 9,  10 

Plaintiff  declining  to  join  may  be  made  defendant      5 

Who  may  be  defendant 6  6,  7,  8 

Court  may  determine  controversy  between  any 

parties    8 

Non-joinder  or  mis-joinder  of 9 

Change  of,  does  not  affect  security 10 

Judgment  for  or  against  several 20 

Separate  trials  between 12  12 

PAYMENT  INTO  COURT 42-45 

PENDING   ACTIONS— 

What  parts  of  act  apply  to 33 

PLEADINGS  GENERALLY   3 

(See  COMPLAINT,  ANSWER,  REPLY.) 
Note  on  pleadings,  p.  56. 
The  subject  discussed,  pp.  10,  56. 
The  principles  of,  pp.  11,  56. 
Common  law,  rules  of,  p.  56. 
Conciseness  in,  p.  62. 

According  to  rules 3 

Order  of  16 

Pleadings  after  reply 16 

Supplemental    30 

Form   of    17 

General  denial,  p.  63 40 


GENERAL  INDEX,  EXCEPT  TO  FORMS.       237 

Section  of  Number 

PLEADINGS  GENERALLY— Continued.  Pr.  Act.     of  Rule. 

Must  state  residence 17 

Untrue  statements  in 19 

Statements  in,  admitted  if  not  denied 20 

According  to  legal  effect '. 21 

Must  not  be  evasive 32 

Certainty  in  pleadings,  p.  56 32,  33 

Objections  to  27,  28 

On  preliminary  reference 63 

Time  for  filing 54,  55 

PRACTICE  ACT— 
Act  of  1903. 

Sections  repealed    34 

Sections  amended,  p.  69. 
Act  of  1912 

History   of   movement   for,   p.    I. 

(And  see  PREFACE.) 
Principles  of,  p.  I. 

Judicial  control  over  procedure,  p.  2. 
Minimum  delay  in  procedure,  p.  5. 
Settlement  of  whole  controversy,  p.  7. 
Important  changes  made  by,  p.  7. 

PRELIMINARY  REFERENCE  17  61-65 

PROCESS- 
TO  be  according  to  rules 3 

REPLEVIN    , .  %  51-53 

REPLY   16,  50 

RESERVING  QUESTIONS  OF  LAW 19 

RULES— 

Power  of  court  to  make  and  suspend 32 

May  be  suspended  in  a  particular  case 5 

REVERSAL— 

For  what  granted 27 

SAVING  CLAUSE- 
AS  to  security,  etc.,  upon  change  of  parties 10 

SEPARATE  TRIALS    12  12 

SET-OFF  12 

SHAM  ANSWER  OR  DEFENCE 15, 16          57-6o 

STATEMENT  OF  CASE— (See  APPEAL.) 

In  place  of  pleadings 22 

SUBSTANTIAL  RIGHTS— 

What  they  are,  p.  6 27 

SUBSTANTIVE  RIGHTS,  pp.  3,  12 I 

SUMMARY    JUDGMENT    15, 16          57-6o 

SUMMONS— 

(See  PROCESS.) 

Annexed  to  complaint 54 


238  GENERAL   INDEX,   EXCEPT   TO    FORMS. 

TENDER    4I-45 

THIRD  PARTIES,  p.  8 12  46 

TIME— 

May  be  extended  by  order 3 

For  filing  pleadings 54-55 

"TRANSACTIONS"    4,6 

Definition  of    13 

TRANSFER  OF  CAUSES    ACT,  p.  68. 

TRIALS—  ' 

(See  SEPARATE  TRIALS) 

Reserving  question  of  law 19 

Submitting  to  jury  alternative  propositions 19 

Defendant's  opening 69 

Submitting  questions  to  jury 70 

New  trial  as  to  part 72,  73 

By  the  court 74>  75 

WRITS  OF  ERROR— 

Abolished  in  civil  cases 25 

Issued  before  this  act  takes  effect 33 


A     000679991     0 


